Non-Governmental Organisations in International Law

http://www.cambridge.org/9780521850889

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Non-Governmental Organisationsin International Law

Non-governmental organisations (NGOs) are playing an

increasing political role on the international scene, and their

position in relation to international law is generally regarded as

important but informal. Their actual legal status has not been the

subject of much investigation. This book examines the legal

status of NGOs in different fields of international law, with

emphasis on human rights law. By means of a thorough

examination and systematisation of international legal rules and

practices, Anna-Karin Lindblom explores the rights, obligations,

locus standi and consultative status of NGOs. This investigation is

placed within a wider discussion on the representation of groups

in the international legal system. Lindblom argues, on the basis

of a discourse model of international decision-making, that

non-governmental organisation is an important form of public

participation that can strengthen the flawed legitimacy of the

state-centric system of international law.

ANNA -KAR IN L INDBLOM, L L .D ., is Special Adviser in human rights

issues in the Ministry of Justice (Division for Democratic Issues),

Sweden. Shewas previously a lecturer in public international law

at Uppsala University, Sweden.

C AM B R I D G E S T U D I E S I N I N T E R N A T I O N A L A N D C OM P A R A T I V E L AW

Established in 1946, this series produces high quality scholarship in the fieldsof public and private international law and comparative law. Although theseare distinct legal sub-disciplines, developments since 1946 confirm theirinterrelation.

Comparative law is increasingly used as a tool in the making of law atnational, regional and international levels. Private international law is nowoften affected by international conventions, and the issues faced by classicalconflicts rules are frequently dealt with by substantive harmonisation of lawunder international auspices. Mixed international arbitrations, especially thoseinvolving state economic activity, raise mixed questions of public and privateinternational law, while in many fields (such as the protection of human rightsand democratic standards, investment guarantees and international criminallaw) international and national systems interact. National constitutionalarrangements relating to ‘foreign affairs’, and to the implementation ofinternational norms, are a focus of attention.

The Board welcomes works of a theoretical or interdisciplinary character,and those focusing on the new approaches to international or comparative lawor conflicts of law. Studies of particular institutions or problems are equallywelcome, as are translations of the best work published in other languages.

General Editors James Crawford SC FBAWhewell Professor of International Law, Faculty of Law, andDirector, Lauterpacht Research Centre for International Law,University of CambridgeJohn S. Bell FBAProfessor of Law, Faculty of Law, University of Cambridge

Editorial Board Professor Hilary Charlesworth Australian National UniversityProfessor Lori Damrosch Columbia University Law SchoolProfessor John Dugard Universiteit LeidenProfessor Mary-Ann Glendon Harvard Law SchoolProfessor Christopher Greenwood London School of EconomicsProfessor David Johnston University of EdinburghProfessor Hein KotzMax-Planck-Institut, HamburgProfessor Donald McRae University of OttawaProfessor Onuma Yasuaki University of TokyoProfessor Reinhard Zimmermann Universitat Regensburg

Advisory Committee Professor D.W. Bowett QCJudge Rosalyn Higgins QCProfessor J. A. Jolowicz QCProfessor Sir Elihu Lauterpacht CBE QCProfessor Kurt LipsteinJudge Stephen Schwebel

A list of books in the series can be found at the end of this volume.

Non-Governmental Organisationsin International Law

Anna-Karin Lindblom

camʙʀɪdɢe uɴɪveʀsɪtʏ pʀessCambridge, New York, Melbourne, Madrid, Cape Town, Singapore, São Paulo

Cambridge University PressThe Edinburgh Building, Cambridge cʙ2 2ʀu, UK

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Contents

Acknowledgements page xvList of abbreviations xvii

Part I Theoretical framework 11 The main issues and their context 3

1.1 Introduction 31.2 The legitimacy of international law 6

Introduction 6Democracy and representationin international law 6A changing international scene: globalisationand the diffusion of state power 12The transnationalisation of civil society andthe increasing role of NGOs 15Legitimacy and international law 22Conclusion: the role of NGOs in a discoursemodel of international law 28

1.3 The diversity of NGOs: definitions anddelimitations 36Definitions of ‘NGO’ in internationalinstruments and doctrine 36Defining ‘NGO’ for the purpose of the study 46

2 Historical and conceptual background 532.1 Introduction 532.2 The historical view of the subjects

of international law 542.3 Intergovernmental organisations as subjects

of international law 58

vii

2.4 The ‘sui generis’ subjects of international law 63Introduction 63The Order of Malta 64The International Committee of the Red Cross 68

2.5 The classical concepts relating to internationallegal personality in modern doctrine 74

2.6 The relationship between personality andthe making of international customary law 77

3 International legal theory and non-state actors 793.1 Introduction 793.2 The actors of international law in international

legal theory 82Introduction 82The rule approach 84

Who are the actors of international law? 84How can it be determined that a newactor has become part of the legal system? 87

The process approach 91Who are the actors of international law? 91How can it be determined that a new actorhas become part of the legal system? 96

International law and international relations 100Who are the actors of international law? 103How can it be determined that a new actorhas become part of the legal system? 107

3.3 Conclusions 109Introduction 109States as the dominant actors ofinternational law 111The increasing role of non-state actors 111States and the conferral of internationallegal status 112Generally accepted sources 113An inductive method 115

Part II Legal and empirical survey 1194 Rights and obligations 121

4.1 Theoretical background 121The concept of ‘rights’ 121

viii CONTENTS

Non-state rights-holders on theinternational plane 123

Introduction 123The intention of the parties 127The terms of the treaty 128Rights and legal remedies 130

Conclusion 1334.2 Organisation rights 134

Human rights, group rights andorganisation rights 134Organisation rights in international law 139

Introduction 139The International Covenant on Civil andPolitical Rights 140The International Covenant on Economic,Social and Cultural Rights 147The UN Declaration on Human RightsDefenders 152The ILO Conventions 154The Aarhus Convention 160The European Convention on theRecognition of the Legal Personality ofInternational Non-GovernmentalOrganisations 164Council of Europe Fundamental Principleson the Status of Non-GovernmentalOrganisations in Europe 166The European Convention on Human Rights 168

The rights to freedom of assembly andassociation 169The right to freedom of expression 172The right to a fair trial 173The right to freedom of religion 174The right to respect for private life 176The right to peaceful enjoyment of one’spossessions 176The legal nature of rights under theEuropean Convention 177

The European Social Charter 177

CONTENTS ix

The American Convention on HumanRights 181The African Charter on Human andPeoples’ Rights 183

4.3 International obligations 187Introduction 187Limitations of organisation rights 190The ILO Conventions 192The UN Declaration on Human RightsDefenders 192The obligations of NGOs in their co-operationwith IGOs 193

Formal IGO–NGO co-operation 193Operational IGO–NGO co-operation 198

Codes of conduct 1984.4 International humanitarian law and

non-state actors 201Introduction 201International humanitarian law andhumanitarian organisations 205

4.5 Conclusions 2155 Standing before international judicial and

quasi-judicial bodies 2185.1 Introduction 2185.2 International bodies 219

The International Court of Justice 219International criminal courts 224The UN Treaty Bodies 224

The Human Rights Committee 224The Draft Optional Protocol to the ICESCR 230The Committee on the Elimination ofRacial Discrimination 231The Committee Against Torture 234The Committee on the Elimination ofDiscrimination Against Women 235

The 1503 Procedure 236The ILO freedom of association procedures 237The UNESCO procedure for individualcommunications 239The World Bank Inspection Panel 241

x CONTENTS

5.3 Regional bodies 246The European Convention on Human Rightsand its monitoring bodies 246

The procedure 246The concept of ‘non-governmentalorganisation’ and the victim requirement 247NGOs as parties before the Commissionand the Court 253Issues raised in cases brought by NGOs 255

The European Social Charter collectivecomplaints procedure 257The European Court of Justice 264The Inter-American System for Human Rights 271

The procedure 271The Inter-American Commission 274The Inter-American Court 277

The African Commission and Court for Humanand Peoples’ Rights 279

The African Commission 279The African Court 285

The Aarhus Convention procedure forindividual communications 285The citizen submission procedure under theNorth American Agreement on EnvironmentalCooperation 288

5.4 Conclusions 2986 Non-party participation before judicial and

quasi-judicial bodies 3006.1 Introduction 3006.2 The World Court 3036.3 International criminal courts 310

The International Criminal Court 310The International Criminal Tribunal for theformer Yugoslavia 310The International Criminal Tribunal forRwanda 314

6.4 The WTO dispute settlement procedure 3176.5 The European Commission and Court

of Human Rights 328The Commission 328

CONTENTS xi

The Court 3286.6 The European Court of Justice 3456.7 The Inter-American Commission and Court

of Human Rights 350The Inter-American Commission 350The Inter-American Court of Human Rights 354

Contentious cases 355Advisory opinions 358

6.8 The African Commission and Court of Humanand Peoples’ Rights 361

6.9 Conclusions 3637 Co-operation with intergovernmental

organisations 3667.1 Introduction 3667.2 The United Nations 367

Introduction 367The General Assembly and the SecurityCouncil 369ECOSOC consultative arrangements 374

General 374ECOSOC Standing Committee onNon-Governmental Organizations 382

ECOSOC subsidiary bodies andextra-conventional mechanisms 387The UN treaty bodies 395

Introduction 395The Human Rights Committee 396The Committee on Economic, Social andCultural Rights 397The Committee Against Torture 399The Committee on the Elimination ofDiscrimination against Women 401The Committee on the Elimination of RacialDiscrimination 402The Committee on the Rights of the Child 404Committee on the Protection of the Rightsof All Migrant Workers and Members ofTheir Families 406

Discussions on reform of UN–civil societyrelationships 406

xii CONTENTS

7.3 The International Labour Organization 410The tripartite structure 410Consultative status 415

7.4 The Council of Europe 4167.5 The European Union 4257.6 The Organization of American States 431

General 431The General Assembly and the GeneralSecretariat 435The OAS Councils 436The Inter-American Commission onHuman Rights 437

7.7 The African Union 438General 438The African Commission on Human andPeoples’ Rights 440

7.8 Conclusions 4448 Participation in international conferences 446

8.1 Introduction 4468.2 Rules for NGO participation in UN conferences 4488.3 The United Nations Conference on

Environment and Development 4508.4 The World Conference on Human Rights 4558.5 Third Session of the Conference of the

Parties to the Framework Convention onClimate Change 460

8.6 The Rome Conference for an InternationalCriminal Court 463Introduction 463Qualitative research interviewing 465The legal framework for NGO participation 467Influence on the negotiations 470General 470The modalities for NGO participation 471Strategies and working methods of NGOs 472The internal strategy of the CICC 477The role of different organisations 478In what respect were the negotiationsinfluenced? 478

8.7 Conclusions 479

CONTENTS xiii

9 Agreements with states and intergovernmentalorganisations 4879.1 International agreements and non-state

actors 4879.2 Agreements between states and NGOs 4949.3 Agreements between IGOs and NGOs 496

Introduction 496Memoranda of understanding and frameworkagreements 498Project agreements 503

9.4 Conclusions 506

Part III Conclusion 51110 Summary and concluding remarks 513

10.1 The legal status of NGOs in international law 51310.2 Possible developments of the legal status

of NGOs through standard-setting 52110.3 NGOs and the legitimacy of international law 523

Bibliography 527Interviews 545Index 547

xiv CONTENTS

Acknowledgements

This book would never have been written without the help of variouspersons and institutions. My sincere gratitude goes first and foremost toProfessor Iain Cameron of the Faculty of Law at Uppsala University, whohas put much time and energy into reading and discussing the manu-script and given very constructive comments. This book draws on adoctoral thesis presented in 2001 at Uppsala University, and Iain was amuch-appreciated supervisor for that project. I am also indebted toProfessor Ove Bring, who offered helpful viewpoints during the firstperiod of the research project. Professors Philippe Sands, ScottDavidson, G. J. H. van Hoof, and Inger Osterdahl all gave valuable com-ments during the public examination of the thesis in 2001.

I am very grateful for the financial assistance of the Faculty of Law ofUppsala University during the period when I worked on the doctoralthesis. Colleagues at the Faculty created a friendly and stimulatingatmosphere. I would especially like to thank the members of the publiclaw seminar group, who read and gave useful input on parts of thethesis manuscript. A special thanks goes to Dr Christina Johnsson, withwhom I discussed theoretical issues of common concern, as well asmany other matters. Thanks also to the librarians at the Law Libraryand the Dag Hammarskjold Library at Uppsala University, as well as thelibrary of theMinistry of Foreign Affairs, formuch help during theworkon both the thesis and the book.

I am very grateful to those who gave me time and important informa-tion during interviews, as well as to everyone at intergovernmental andnon-governmental organisations who provided me with material.

The Swedish Foundation for International Cooperation in Researchand Higher Education financed a much-appreciated stay at theLauterpacht Research Centre for International Law of Cambridge

xv

University. It was a privilege to experience the stimulating environmentat the Centre, and I would like to thank everyone there for their friend-liness and hospitality. I am also grateful to the Foundation Staten ochRatten (the State and the Law), which providedmewith a scholarship sothat I could update and revise my thesis.

My present colleagues at the Ministry of Justice have extended valu-able encouragement. Finally, a special thanks goes to my family formuch emotional and practical support.

xvi ACKNOWLEDGEMENTS

Abbreviations

ACHPR African Commission for Human and Peoples’ RightsACISMOM Association of Italian Knights of the Order of MaltaADB Asian Development BankAFN Assembly of First Nations (Canada)AIRE Advice on Individual Rights in Europe (Centre, UK)AJIL American Journal of International LawAP Additional Protocol (Geneva Convention)APRODEH Asociacion Pro Derechos Humanos (Colombia)APW Agreements for the Performance of Work (WHO)ARIS Anti Racism Information Service (CERD)ASIL American Society of International LawASOPAZCO Association for Peace in the Continents (Cuba)AU African UnionBYIL British Yearbook of International LawCAPECE Petroleum Environment Capacity Enhancement

(Cameroon)CAT Convention against TortureCBO Community-based organisationCEDAW Convention on the Elimination of all Forms of

DiscriminationCEDHU Comision Ecumenica de Derechos Humanos (Chile)CEJIL Center for Justice and International LawCERD Convention on the Elimination of All Forms of Racial

DiscriminationCFI Court of First InstanceCICC NGO Coalition for an International Criminal CourtCIDI Inter-American Council for Integral Development

xvii

CIEL Center for International Environmental LawCLO Civil Liberties OrganisationCMC Center for Marine ConservationCMPDH Comision Mexicana para la Defensa y Promocion de

Derechos HumanosCODESRIA Council for the Development of Economic and Social

Research in AfricaCoE Council of EuropeCONECCS Consultation, the European Commission and Civil

SocietyCONGO Conference of NGOs in Consultative Relationship with

the United NationsCOP Conference of the PartiesCoR Committee of the Regions (EU)CRC Convention on the Rights of the ChildCSD Commission on Sustainable Development (ECOSOC)CSO Civil society organisationD&R Decisions and Reports of the European Commission of

Human RightsDRC Documentation and Advisory Centre on Racial

Discrimination (Denmark)DSB Dispute Settlement BodyDSU Agreement Establishing the World Trade Organization

(1994), Annex 2, Understanding on Rules and ProceduresGoverning the Settlement of Disputes (DisputeSettlement Understanding)

EC European CommunityECHO Humanitarian Office of the European CommissionECHR European Convention for the Protection of Human Rights

and Fundamental FreedomsECJ European Court of JusticeECOSOC Economic and Social CouncilECCOSOC Economic, Social and Cultural Council (AU)EEC European Economic CommunityEFL Environmental Foundation LtdEJIL European Journal of International LawEP European ParliamentEPIL Encyclopedia of Public International LawESC Economic and Social Committee (EC)

xviii L I S T OF ABBREV IAT IONS

ETS European Treaty SeriesEU European UnionEuropol European Police OfficeFAO Food and Agriculture OrganizationFASM Association of Muslim Students (Denmark)FCCC Framework Convention on Climate ChangeFEDEPAZ Fundacion Ecumenica para el Desarollo y la Paz (Peru)FIDH International Federation of Human RightsFIELD Foundation for International Environmental Law and

DevelopmentGA General Assembly (UN)GATT General Agreement on Tariffs and TradeGC Geneva ConventionGDP Gross domestic productGONGO Government-organised non-governmental organisationHRC Human Rights CommitteeHRIC Human Rights in ChinaHRLJ Human Rights Law JournalHRQ Human Rights QuarterlyHUDOC Database of the case-law of the supervisory organs of the

European Convention on Human RightsIADB Inter-American Development BankIBRD International Bank for Reconstruction and Development

(World Bank)ICBL International Campaign to Ban LandminesICC International Chamber of CommerceICC International Criminal CourtICCPR International Covenant on Civil and Political RightsICESCR International Covenant on Economic, Social and Cultural

RightsICJ International Court of JusticeICLQ International and Comparative Law QuarterlyICPD International Conference of Population andDevelopmentICRC International Committee for the Red CrossICRC International Convention on the Rights of the ChildICTR International Criminal Tribunal for RwandaICTY International Criminal Tribunal for the Former

YugoslaviaIDA International Development Association

L I ST OF ABBREV IAT IONS xix

IFI International financial institutionIFTU International Federation of Trade UnionsIGO Intergovernmental organisationIL–IR International law–international relationsILO International Labor OrganizationILP International legal processILR International Law ReportsIMF International Monetary FundINGO International non-governmental organisationINTGLIM International Task Group on Legal and Institutional

Matters (UN)IPR Intellectual property rightsIRA Irish Republican ArmyISO International Organization for StandardizationIUCN International Union for the Conservation of NatureJCIDP Jamuna Char Integrated Development ProjectJCWI Joint Council for the Welfare of Immigrants (UK)JPAC Joint Public Advisory Committee (NAAEC)LOA Letter of Agreement (FAO)MAP Mangrove Action ProjectMIND The National Association for Mental Health (UK)MNE Multinational organisationMOU Memorandum(a) of UnderstandingNAAEC North American Agreement on Environmental

CooperationNAFTA North American Free Trade AgreementNCAI National Congress of American IndiansNGO Non-governmental organisationOAS Organization of American StatesOAU Organization of African UnityODA Official development assistanceOECD Organization for Economic Co-operation and

DevelopmentOHCHR Office of the United Nations High Commissioner for

Human RightsOMCT World Organisation against TortureOP Optional ProtocolOSCE Organization for Security and Co-operation

in Europe

xx L I S T OF ABBREV IAT IONS

OSICAN Organization of Indigenous Syndics of the NicaraguanCaribbean

PCIJ Permanent Court of International JusticePEN Philippine Ecological NetworkPLO Palestine Liberation OrganizationPOEM Umbrella Organization for the Ethnic Minorities

(Denmark)PrepCom Preparatory CommitteeQCEA Quaker Council for European AffairsQUANGO Quasi-non-governmental organisationRECIEL Review of European Community and International

Environmental LawRENACE Red Nacional de Accion EcologicaSWANUF South-West Africa National United FrontSWAPO South-West Africa People’s OrganizationTIAS US Treaties and Other International AgreementsTNC Transnational corporationTRP Transnational Radical Party (Chechnya)TUC Trades Union Congress (UK)UDHR Universal Declaration of Human RightsUEAPME Union Europeene de l’Artisinat et de Petites et Moyennes

EntreprisesUN United NationsUNAMIR United Nations Assistance Mission for RwandaUNCED United Nations Conference on Environment and

Development (Rio Conference)UNCITRAL United Nations Commission on International Trade LawUNCLOS United Nations Convention on the Law of the SeaUNDEP United Nations Development ProgramUNEP United Nations Environment ProgrammeUNESCO United Nations Educational, Scientific and Cultural

OrganizationUNHCR United Nations High Commissioner for RefugeesUNICEF United Nations Children’s FundVCLT 1969 Vienna Convention on the Law of Treaties (1969)VCLT 1986 Vienna Convention on the Law of Treaties between States

and International Organizations or between InternationalOrganizations

WFP World Food Programme

LIST OF ABBREV IAT IONS xxi

WHO World Health OrganizationWTO World Trade OrganizationWWF World Wide Fund for NatureYILC Yearbook of the International Law Commission

xxii L I S T OF ABBREV IAT IONS

PART I * THEORETICAL FRAMEWORK

1 The main issues and their context

1.1 Introduction

My aim in this study is to investigate the present legal status of non-governmental organisations (NGOs) in international law, and to discussthis status in relation to the functioning and legitimacy of the inter-national legal system. The seemingly technical issue of internationallegal status is closely related to broader questions about participationand representation of different groups on the international plane andthe legitimacy of international law. The overall perspective chosen hereis therefore a systemic one, which sees questions about the role of NGOsas legal actors as issues of how international law functions, and ought tofunction, as a system. It should nevertheless be clarified at the outsetthat it is not asserted that NGOs are ‘good’. In fact, NGOs are neithergood nor bad. This study concentrates on non-governmental organisa-tion (without an ‘s’) as a form of association, rather than on particularorganisations, and on the role of NGOs generally within the inter-national legal context.

Part I contains the theoretical framework of the study. This first,introductory, chapter outlines the political and legal setting in whichthe study is placed. It deals with a number of basic characteristics ofinternational law as well as international political developments anddiscusses issues of the legitimacy of international law and the role ofNGOs in that context. The chapter also examines different definitions of‘non-governmental organisation’ and specifies the term for the purposeof the investigation, along with the delimitations which have beennecessary. Chapter 2 includes a historical and conceptual backgroundto the issue of the actors of international law, while chapter 3 provides atheoretical and methodological platform for the investigation. Part II

3

(chapters 4–9) is the study ‘itself ’, i.e. a survey of international legalrules and practices which relate to NGOs. Part III (chapter 10) containsthe conclusions of the study.

The topic of NGOs is vast. It should thus be observed that a study onthe rather narrow and somewhat dry topic of the international legalstatus of NGOs can only contribute a detail to the overall picture of therole and work of these organisations. I believe, however, that it is bothpossible and justified to concentrate on this detail thanks to theimpressive and multi-faceted research on NGOs which has alreadybeen carried out, and which is growing steadily. The majority of inves-tigations have been conducted within the fields of political science andsociology. There are several studies that focus on the role of NGOs ininternational relations, on their interaction with intergovernmentalorganisations (IGOs), on their working methods or on particularNGOs.1 There is also a considerable number of international legalworks, mainly articles, on NGOs but they generally do not discuss thegeneral issue of legal status.2 An increasing number of books and

1 Tomention a few books of a more general character (the articles are too numerous to belisted here): John Boli and George M. Thomas (eds.), Constructing World Culture:International Nongovernmental Organizations since 1875, Stanford University Press, 1999;Henry F. Carey and Oliver P. Richmond (eds.), Mitigating Conflict: The Role of NGOs, FrankCass, 2003; Ann C. Hudock, NGOs and Civil Society: Democracy by Proxy?, Cambridge: PolityPress, 1999; Margaret E. Keck and Kathryn Sikkink, Activists Beyond Borders: AdvocacyNetworks in International Politics, Cornell University Press, 1998; William Korey, NGOs andthe Universal Declaration of Human Rights: A Curious Grapevine, London: Palgrave, 2001; CraigWarkentin, Reshaping World Politics: NGOs, the Internet and Global Civil Society, Oxford:Rowman & Littlefield, 2001; Thomas G. Weiss and Leon Gordenker (eds.), NGOs, the UN,and Global Governance, Boulder, CO: Lynne Rienner, 1996; Claude E. Welch, Jr. (ed.), NGOsand Human Rights: Promise and Performance, Philadelphia: University of Pennsylvania Press,2001 and Protecting Human Rights in Africa: Strategies and Roles of Non-GovernmentalOrganizations, Philadelphia: University of Pennsylvania Press, 1995; and Peter Willetts(ed.), ‘The Conscience of the World’: The Influence of Non-Governmental Organisations in the UNSystem, Oxford: Hurst & Co., 1996.

2 One exception is Rainer Hofmann, Non-State Actors as New Subjects of International Law:International Law – From the Traditional State Order Towards the Law of the Global Community,Proceedings of an International Symposium, Berlin: Duncker and Humblot, 1999. Seealso Yves Beigbeder, Le role international des organisations non-gouvernamentales, Brussels:Bruylant, 1992 and The Role and Status of International Humanitarian Volunteers andOrganizations: The Right and Duty to Humanitarian Assistance, Dordrecht: Martinus Nijhoff,1991; Mario Bettati and Pierre-Marie Dupuy (eds.), Les ONG et le Droit International, Paris:Economica, 1986; Theo C. van Boven et al. (eds.), The Legitimacy of the United Nations:Towards an Enhanced Legal Status of Non-State Actors, Netherlands Institute of HumanRights, SIM Special, 19, Utrecht, 1997; Sara Guillet, ‘Nous, peuples des nations unies . . .’:l’action des organisations non-gouvernamentales dans le systeme international de protection desdroits de l’homme, Centre de Droit International de Paris I, Perspectives internationales,

4 THEORET ICAL FRAMEWORK

articles examine the influence of NGOs on international law-making.3

The major international legal textbooks, for their part, still seem toregard international legal rules which deal with private actors asanomalies that do not alter the general principle that internationallaw is about relations between states and IGOs. NGOs are in conse-quence only briefly mentioned in most such textbooks.4

10, Montchrestien, 1995; Morita Hiroshi, International Human Rights and in ParticularReference to the Role of Non-Governmental Organizations, Dissertation University of Alberta,Faculty of Law, 1993; J. J. Lador-Lederer, International Non-Governmental Organizations andEconomic Entities: A Study in Autonomous Organization and Ius Gentium, Leyden: A.W. Sijthoff-Leyden, 1963; Chiang Pei-heng, Non-Governmental Organizations at the United Nations:Identity, Role and Function, New York: Praeger, 1981; Howard B. Tolley, Jr., The InternationalCommission of Jurists: Global Advocates for Human Rights, Philadelphia: University ofPennsylvania Press, 1994; Lyman Cromwell White, International Non-GovernmentalOrganizations: Their Purposes, Methods and Accomplishments, New Brunswick: RutgersUniversity Press, 1951. The relevant articles are too many to list here, but are citedthroughout the study.

3 Bas Arts, The Political Influence of Global NGOs: Case Studies on the Biodiversity Conventions, Utrecht:International Books, 1998; Claire Breen, ‘The Role of NGOs in the Formulation of andCompliance with the Optional Protocol to the Convention on the Rights of the Child onInvolvement of Children in Armed Conflict’, 25 HRQ (2003), pp. 453–481; Maxwell A.Cameron et al. (eds.), To Walk Without Fear: The Global Movement to Ban Landmines, OxfordUniversity Press, 1998; Cynthia Price Cohen, ‘The United Nations Convention on the Rightsof the Child: Involvement of NGOs’, in Theo Van Boven et al. (eds.), The Legitimacy of the UnitedNations: Towards an Enhanced Legal Status of Non-State Actors, Netherlands Institute of HumanRights, SIM Special, 19, Utrecht, 1997, pp.169–184; Virginia Leary, ‘A New Role forNon-Governmental Organizations in Human Rights: A Case Study of NGO Participation inthe Development of International Norms on Torture’, in Antonio Cassese (ed.), UNLaw/Fundamental Rights, Alpen aan den Rijn: Sijthoff & Nordhoff, 1979, pp. 197–209; NiallMacDermot, ‘The Role of NGOs in Human Rights Standard-Setting’, UN Bulletin of HumanRights, 90/1, pp.42–49; Louis Maresca and Stuart Maslen (eds.), The Banning of Anti-PersonnelLandmines: The Legal Contribution of the International Committee of the Red Cross 1955–1999,Cambridge University Press, 2000. See also Kenneth Anderson, ‘The Ottawa ConventionBanning Landmines, the Role of International Non-governmental Organizations and theIdea of International Civil Society’, 11 EJIL (2000), pp. 91–120, which is mostly a discussionon the (non-)democratic aspects of NGO influence.

4 See, e.g., I. A. Shearer, Starke’s International Law, 11th edn., London: Butterworths,1994 – nomention, apart from the Order of Malta as a non-state entity, p. 103; Sir RobertJennings and Sir Arthur Watts (eds.), Oppenheim’s International Law, I, 9th edn., London:Longman, 1996, pp. 21–22; Malcolm N. Shaw, International Law, 4th edn., CambridgeUniversity Press, 1997, pp. 138, 192 – very briefly and p. 171 (the Order of Malta); IainBrownlie, Principles of Public International Law, 5th edn., Oxford University Press, 1998 – nomention at all (as far as I can see), with the exception of the SovereignOrder of Jerusalemand Malta, p. 65; D. J. Harris, Cases and Materials on International Law, 5th edn., London:Sweet & Maxwell, 1998, pp. 15, 142–143 (the latter on the Order of Malta); Henry G.Schermers and Niels M. Blokker, International Institutional Law: Unity within Diversity, 3rdrev. edn., Dordrecht: Martinus Nijhoff, 1999, pp. 32–33, 128–129, 132–133. PeterMalanczuk,Akehurst’s Modern Introduction to International Law, 7th edn., London: Routledge1997, pp. 96–100, is more elaborate.

THE MA IN I S SUES AND THE IR CONTEXT 5

1.2 The legitimacy of international law

Introduction

Below, I will explore how the issue of the legal status of NGOs is linkedto the question of the legitimacy of international law. This is donethrough placing the issue in a wider context of today’s internationallegal and societal system. The focus will be on three factors, which Ibelieve are of particular relevance to the international legal role ofNGOs. These factors are: first, that the rules on recognition of statesand government do not, in practice, require democratic government,which means that large sections of the world’s population are notrepresented on the international plane; secondly, the diffusion ofstate power which is due to a number of factors that can be summarisedas globalisation; and, thirdly, a transformation in theway that identitiesand loyalties are shaped in the globalised society as evidenced by, interalia, the increasing numbers and political influence of NGOs. Bearingthese three phenomena in mind, I shall examine different conceptuali-sations of legal legitimacy and their relation to the individual and to civilsociety. In the concluding section, I shall suggest that the deliberativemodel of democracy can help explain the role and function of civilsociety and NGOs in international law.

Democracy and representation in international law

According to traditional international law, a government in effectivecontrol of the territory is generally accepted as the representative of thepopulation within that territory even if it has assumed power throughviolent or otherwise undemocraticmethods. Moreover, the governmentwill continue to be regarded as the people’s representative even if itcommits serious violations of international rules on human rights. Thedominant theory on the recognition of governments and of states restson the criterion of de facto effective control of the government.5 As theinternational representative of the population, a government enjoys an

5 There are signs that this is changing, see section 1.2. Moreover, even today one can saythat when judging whether the degree of effective control is sufficient for statehood,some consideration canbe taken of themanner inwhich the government came topower –e.g. if there has been a breach of the right to self-determination. James Crawford, TheCreation of States in International Law, Oxford: Clarendon Press, 1979, pp. 84–118; SeanD. Murphy, ‘Democratic Legitimacy and the Recognition of States and Governments’, inGregory Fox and Brad R. Roth (eds.), Democratic Governance and International Law,Cambridge University Press, 2000, pp. 125 ff.


exclusive right from the international legal perspective to perform anumber of important acts which will bind the population as a whole,such as to become a member of international organisations, to negoti-ate and cast the vote of that state in such organisations, to adhere tointernational agreements and to declare war or peace.6

It has, however, been suggested in international legal doctrine thatinternational law does not, or should not, remain unconcernedwith theway a people is governed. The major debate was initiated in 1992 byThomas Franck and his article ‘The Emerging Right to DemocraticGovernance’.7 In his article, Franck suggested that democratic govern-ance was gradually becoming a global entitlement in international law.More precisely, Franck described the development of international legalrules defining theminimal requisites of a democratic process capable ofvalidating the exercise of power and measuring the legitimacy of eachgovernment.8 He suggested that the building blocks of an emergingnorm of ‘democratic entitlement’ were three: self-determination(understood as the right of a people to determine its collective politicaldestiny), the human right of free political expression, and a participa-tory electoral process.9 Franck based these three componentsmainly onthe UN Charter and on the International Bill of Human Rights, but alsoon certain elements of state practice. He suggested that the right to self-determination applied not only in a colonial context, but to peopleseverywhere, whether in a dependent territory or an independentstate.While the rights ofminorities are generally regarded as individualrights, not including any right to secession, Franck proposed that theremay be an exception to this rule where a people, which is geographi-cally separate and has its own ethnic and/or cultural characteristics, hasbeen placed in a position or status of subordination.10 The right to free

6 According to Article 46 of the Vienna Convention on the Law of Treaties (VCLT) (1969), atreaty is binding upon a state even if the government has acted in breach of national lawregarding the competence to conclude treaties.

7 Thomas Franck, ‘The EmergingRight toDemocraticGovernance’, 86AJIL (1992), pp. 46–91.See also Thomas Franck, The Principle of Fairness in International Law and Institutions, OxfordUniversity Press, 1995, pp. 25–46.

8 Franck, ‘The Emerging Right to Democratic Governance’, pp. 49–50. 9 Ibid., pp. 52 ff.10 Ibid., pp. 58–59. The character of minority rights is the subject of much debate; see, e.g.,

Badinter Arbitration Commission, Opinion No. 2, 11 January 1992; Antonio Cassese,Self-Determination of Peoples: A Legal Reappraisal, Cambridge University Press, 1995;Thomas D. Musgrave, Self Determination and National Minorities, Oxford University Press,1997; Harris, Cases and Materials, pp. 113 ff; Rosalyn Higgins, Problems and Process:International Law and How We Use It, Oxford: Clarendon Press, 1994, p. 124.


political expressionwas understood as inclusive of the rights to freedom ofthought, freedom of association and freedom of expression as specifiedin the International Covenant on Civil and Political Rights (ICCPR).11

The third building block of the democratic entitlement, the require-ment of a participatory electoral process, was according to Franck supportedby Article 21 of the Universal Declaration of Human Rights, Article 25 ofICCPR and a UNGeneral Assembly resolution declaring that periodic andgenuine elections are a necessary and indispensable element in theeffective enjoyment in a wide range of human rights and developmentswithin the regional human rights mechanisms.12 Franck concluded that:

The democratic entitlement, despite its newness, already enjoys a high degreeof legitimacy, derived both from various texts and from the practice of globaland regional organizations, supplemented by that of a significant number ofnon-governmental organizations.13

Franck has also later observed that there is a clear development towardsa democratic entitlement in the sense that governments are increas-ingly making legal provisions for determining their governments bymulti-party secret ballot elections.14

Sean D. Murphy has investigated the relationship between nationalpolitical situations and the recognition of states and governments.15 Onthe basis of a detailed review of events in the international arena whichneed not be repeated here, Murphy concludes, inter alia, that (a) while

11 Franck, ‘The Emerging Right to Democratic Governance’, p. 61. Article 19(2) reads:‘Everyone shall have the right to freedom of expression; this right shall includefreedom to seek, receive and impart information and ideas of all kinds, regardless offrontiers, either orally, in writing or in print, in the form of art, or through any othermedia of his choice.’

12 A/RES/46/137, Enhancing the Effectiveness of the Principle of Periodic and Genuine Elections,17 December 1991, and Franck, ‘The Emerging Right to Democratic Governance’,pp. 63 ff.

13 Franck, ‘The Emerging Right to Democratic Governance’, p. 90. It is interesting thatFranck here takes account not only of the practice of states and IGOs, but also thepractice of NGOs. Franck is of the opinion that, while the United Nations and theregional human rights organisations are regarded as the main actor in validatinggovernments, NGOs have a supplementary role to play, pp. 76, 90. Franck has laterspecified the relevant practice of NGOs as their ‘activities’, see The Principle of Fairnessin International Law and Institutions, p. 138.

14 According to the Article (which refers to reports in the New York Times and from the USState Department, 130 governments were legally committed to such elections in 1997,and most of them had joined the trend during the 1990s. Franck, ‘Legitimacy and theDemocratic Entitlement’, in Gregory Fox and Brad R. Roth (eds.), Democratic Governanceand International Law, Cambridge University Press, 2000, p. 27.

15 Murphy, ‘Democratic Legitimacy and the Recognition’, pp. 123 ff.


democratic legitimacy is increasingly becoming a factor in recognitionpractice, there is no international norm obligating the internationalcommunity not to recognise an emerging state simply because its poli-tical system is undemocratic, and (b) if there is an emphasis on demo-cratic legitimacy as regards the recognition of governments, it arisesprimarily where a democratic government is internally overthrown bynon-democratic forces.16

Like Murphy, Crawford is sceptical about the relevance of democracyto recognition practice. He points to the inconsistent state practice inrelation to undemocratic regimes:

from wholesale regional intervention in Sierra Leone and Liberia, to limitedmeasures of disapproval and economic sanctions in Myanmar and Nigeria, totoleration and acceptance (as with the Kabila government in Congo/Zaıre and orthat of Buyoya in Burundi), and even to complicity (as with the ‘preventive’ coupin Algeria).17

Crawford also refers to the discussion and voting in 1999 in the UNCommission on Human Rights regarding a resolution on the right todemocracy.18 In the resolution, the Commission on Human Rightsrecalled ‘the large body of international law and instruments, includingits resolutions and those of the General Assembly, which confirm theright to full participation and the other fundamental democratic rightsand freedoms inherent in any democratic society’, and affirmed that ‘therights of democratic governance’ include a number of human rights,such as the rights to freedom of opinion and expression, of thought,conscience and religion, and of peaceful association and assembly.19

The resolution was adopted by fifty-one votes to none with two absten-tions, but the debate on the resolution was lengthy, and a couple ofproposals by Cuba on changing the title and the operative paragraph ofthe resolution were supported by a number of states.20 It can be

16 Ibid., pp. 146, 153.17 Crawford, ‘Democracy in International Law – A Reprise’, in Gregory Fox and Brad

R. Roth (eds.), Democratic Governance and International Law, p. 117.18 Crawford, ‘Democracy in International Law’, Cambridge University Press, 2000, p. 116.19 E/CN.4/RES/1999/57, Promotion of the Right to Democracy, 28 April 1999, para. 6 of the

Preamble and para. 2.20 A proposal to delete the expression ‘right to democracy’ from the title was rejected by a

vote of 12 in favour and 28 opposed with 13 abstentions, while the proposal to replaceoperative para. 3 of the resolution was defeated by 9 votes in favour and 27 opposed,with 17 abstentions, UN Press Release, HR/CN/99/61, Resolution on Promotion of DemocracyAdopted by Commission on Human Rights, 27.04.1999.


observed that in subsequent resolutions the General Assembly hasgiven some support to the right to take part in elections and ingovernment.21

The democratic norm theory has met criticism with regard to itsunderstanding of democracy. Susan Marks asserts that the focus onprocedures means that

the extent to which social and material conditions affect the opportunities forpolitical participation is made to appear irrelevant. The real inequality amongcitizens is masked by the formal equality of participation among voters.22

Marks contends that the right to democratic governance as proposed ininternational legal theory has the character of ‘low intensity demo-cracy’, as it identifies democracy with the holding of multi-party elec-tions, the protection of civil rights and the establishment of the rule oflaw. It tends therefore to stabilise existing power relations.23 There arealso problems with the international dimension of the democraticnorm thesis, as elaborated mainly by Anne-Marie Slaughter, because itis limited in the sense that it is pan-national rather than an attemptto democratise global governance, and aims at a multi-layered processof democratisation rather thanpromoting theuniversalisationofnationaldemocracy.24 In sum, ‘A move to promote democracy through inter-national law becomes a step in securing systematic inequalities amongstates, within states, and in global governance generally’.25 Instead,Marks proposes a ‘principle of democratic inclusion’. She does this tosignal a very different conception from that which informs the pro-posed norm of democratic governance. According to the principleof democratic inclusion, everyone should have the right to a say indecision-making that affects them. The principle includes not only those

21 In a 2001 resolution, the Assembly calls upon ‘States to promote and consolidatedemocracy, inter alia, by . . . Guaranteeing that everyone can exercise his or her right totake part in the government of his or her country, directly or through freely chosenrepresentatives.’ A/RES/55/96, Promoting and Consolidating Democracy, 28 February 2001,para. 1d(i). The resolution was adopted by 157 votes to none, with 16 abstentions, A/55/PV.81, 81st Plenary Meeting, 4 December 2000, p.16. See also A/RES/54/173, 15 February2000, and A/RES/58/180, 17 March 2004 and, on the other hand, A/RES/58/189,22 March 2004.

22 Susan Marks, The Riddle of All Constitutions: International Law, Democracy, and the Critique ofIdeology, Oxford University Press, 2000, p. 61.

23 Marks is here referring to arguments presented by Gills, from whom the expression‘low intensity democracy’ originates, but in her conclusions she basically endorses thisreasoning. Marks, The Riddle of All Constitutions, pp. 52, n. 8, and 74–75.

24 Ibid., pp. 86 ff. 25 Ibid., p. 101.


operating within nation-states, but also those that operate among nation-states and in transnational arenas.26Marks thereby endorsesDavidHeld’sview that democracy requires ‘a model of political organization in whichcitizens, wherever located in the world, have voice, input and politicalrepresentation in international affairs, in parallel with and indepen-dently of their own governments’. Democracy is thus to be seen as anideal of popular self-rule andpolitical equality, an ideal that has relevancenot only in national, but in also in international political settings.27

It is clear that the right to political participation, to democratic elec-tions and several related rights have a firm basis in international treatylaw. The question whether all these human rights together and incombination with state practice provide evidence for an emergingright to democratic governance is however uncertain, for several rea-sons. There is considerable disparity between, on the one hand, thesubstantial support in international and regional treaty law forhuman rights related to democratic governance and, on the other,state practice. While there is indeed a trend towards more democraticsystems of government among states on paper, democratic rights are, aswe all know, often violated in reality. Also, there is still rather weaksupport in state practice for the hypothesis that non-democratic statesare treated differently in international recognition practice as com-pared to democratic states and governments.

It can thus be concluded that, in spite of Franck’s democratic normtheory, international law excludes large groups from internationalrepresentation based on popular consent. This also means that inter-national law has internal contradictions. While it guarantees democraticrights in treaty law, the law on recognition of states and governmentsonly incidentally takes a respect for democratic rights on the nationalplane into account. As is illustrated by Marks’ critique, this lack ofrepresentation is not really a problem for the democratic norm theory,which is more concerned with the validation of national governments

26 Ibid., pp. 109, 119.27 Ibid., pp. 109–110, citing Daniele Archibugi and David Held in their introduction to

Cosmopolitan Democracy: An Agenda for a New World Order, Cambridge: Polity Press, 1995,p. 13. See also, regarding ‘the emerging participatory notion of internationalenvironmental law’, Jonas Ebbesson, ‘The Notion of Public Participation inInternational Environmental Law’, 8 Yearbook of International Environmental Law (1997),p. 60, and about public participation in international environmental law generally,Daniel Bodansky, ‘The Legitimacy of International Governance: A Coming Challengefor International Environmental Law’, 93 AJIL (1999), pp. 617 ff.


than with how international law should redress the de facto situation oflacking political representation and political equality. Nevertheless, it isinteresting that the democratic norm theory – aswell asMarks’ critique –evidences a growing interest and recognition in international law fordemocratic principles which used to be left aside as an issue of prima-rily, if not solely, national concern.

In addition to the problem of international representation of peo-ple(s) living under authoritarian rule, the democratic links betweeninternational fora and individuals in states where the government hasbeen democratically elected are sometimes weak. One explanation forthis is the phenomenon of globalisation, which will be discussed below,while another is the position of minorities in national democraticsystems. Indigenous peoples and minorities which are distinct fromthe rest of the population with regard to culture, religion or languageoften find themselves in the position of a constant political minority –for example, due to the fact that state frontiers have divided them intoseveral smaller groups. If there are no constitutional mechanisms thatcan compensate for this situation, the consequence may be democraticexclusion on both the national and international level.28 Although theexistence of minority rights in international human rights law demon-strates that it is considered legitimate for the international communityto take an interest in the protection of indigenous peoples and cultural,religious and linguistic minorities, the rights pronounced for theirprotection are mainly of an individual character or constructed to beexercised within the state, and do not address the question of inter-national representation of the groups.29

A changing international scene: globalisation and the diffusionof state power

The relationship between state and society seems to be transformingthrough a number of intersecting phenomena that are occurringwithin and between the arenas of the state, IGOs and private actors.

28 On the problem of democratic exclusion of minorities in national democracy, seeChristina Johnsson, Nation States and Minority Rights: A Constitutional Law Analysis, UppsalaUniversity, 2002, pp. 59 ff. and Charles Taylor, ‘TheDynamics of Democratic Exclusion’,9.4 Journal of Democracy (1998), pp. 143 ff.

29 On the character of minority rights, see section 4.21, the Human Rights Committee’sGeneral Comment No. 12, The Right to Self-Determination of Peoples (in particular, para. 4),13 March 1984, and No. 23, The Rights of Minorities, 8 August 1994 and Johnsson, NationStates and Minority Rights, pp. 35–40, 118 ff.


These phenomena are often summarised as ‘globalisation’ withoutmuch further specification. It seems that the majority of academicsrecognise globalisation as a fact, and that these political and socialchanges are relevant to issues of democracy, to international law andin particular to the question of its actors. Not myself belonging to thefield of political science, I shall rely on other scholars in considering thepolitical developments in this field in order to sketch a background tothe study.

In his trilogy The Information Age, the sociology professor ManuelCastells has given a thorough account of globalisation and the particularphenomena that affect the role and influence of the state and of privateactors in society. More precisely, Castells describes globalisation as adiffusion of state power which is due to several factors.30 First, theinterdependence of financialmarkets and the co-ordination of currenciesdecrease the state’s possibilities of controlling its monetary – and, ulti-mately, budgetary – policies. Secondly, there is increasing transnationa-lisation and relocation of production, which cause employment as wellas fiscal problems for the state. The third factor is interrelated with thesecond: thewelfare state experiences problemswhen commercial bodiesoperate in global markets where there are differences in costs for socialbenefits. Castells claims that the downward spiral of social benefitswhich is or may be the effect of these differences results in a situationwhere ‘a fundamental component of the legitimacy and stability of thenation-state fades away’. Fourthly, the media, which used to be a tool forinformation and opinions in the hands of the state, are becoming pri-vatised and globalised. And, finally, growing multilateralism in severalareas, such as foreign policy and defence, constrains state power inter-nationally, as evidenced by the increasing role of theUN Security Counciland regional defence alliances, international economic institutions andthe European Union, for example.31 Castells describes the relation

30 Manuel Castells, The Information Age: Economy, Society and Culture, II, The Power of Identity,Oxford: Blackwell, 1997, pp. 243 ff., and III, End of Millennium, 2nd edn., Oxford:Blackwell, 2000, pp. 377 ff. The same factors are identified by Ulrich Beck, in What isGlobalization?, Cambridge: Polity Press, 2000, pp. 1–18. See also Hans-Peter Martin andHarald Schumann, The Global Trap: The Assault on Prosperity and Democracy, London: Zed,1997; Jurgen Habermas, The Postnational Constellation: Political Essays, Cambridge: PolityPress 2001, pp. 65 ff.; and David Held and Mathias Koenig-Archibugi (eds.), TamingGlobalization: Frontiers of Governance, Cambridge: Polity Press, 2003.

31 Castells also describes other factors, such as the globalisation of crime, Castells, ThePower of Identity, pp. 259 ff. As regards the largest states, it can be questioned whethertheir power has really been constrained by multilateralism.


between these different developments and the functioning of represen-tative democracy in the national setting in the following words:

The main transformation concerns the crisis of the nation-state as a sovereign entityand the related crisis of political democracy, as constructed in the past two centuries.Since commands from the state cannot be fully enforced, and since some of itsfundamental promises, embodied in the welfare state, cannot be kept, both itsauthority and its legitimacy are called into question. Because representativedemocracy is predicated on the notion of a sovereign body, the blurring ofboundaries of sovereignty leads to uncertainty in the process of delegation ofpeople’s will.32

If globalisation means that governments are not in full control of thenational political scene, the link between national democracy and thedecisions taken in international bodies appears even weaker. The pro-blem of ‘democratic deficit’ has been much discussed in relation to theEuropean Union, but its application is extending outside the regionalarena.33 The socio-political changes of globalisation also correspond to aperforation of state sovereignty in different fields of international lawand, again, the strengthened role of intergovernmental and regionalorganisations.34

Reflecting on this situation, Robert Dahl poses the question whetherthe national democratic process cannot simply move up to the inter-national level. In his view, such a suggestion is excessively optimistic,as ‘Crucial decisions mainly come about through bargaining’, and‘Limits are set not by democratic processes but mainly by what nego-tiators can get others to agree to.’35 If Dahl is right, the problem ofdemocratic deficit in multilateral decision-making bodies is intrinsicand will grow with increasing internationalisation.36 In the report ofthe Panel of Eminent Persons on Civil Society and UN Relationships,the weak influence of traditional democracy in matters of globalgovernance is noted as one reason why citizens in different parts of

32 Castells, End of Millennium, p. 377 (emphasis in original).33 Dahl states that ‘virtually all observers agree that a gigantic ‘‘democratic deficit’’

remains’ within the European Union, in spite of nominally democratic structures, suchas the parliament. Robert A. Dahl, On Democracy, New Haven: Yale University Press,1998, p. 115.

34 See further Christoph Schreuer, ‘The Waning of the Sovereign State: Towards A NewParadigm for International Law?’, 4 EJIL (1993), pp. 447–471.

35 Dahl, On Democracy, pp. 114–115.36 See section 1.2 for a brief description of suggestions on how these problems can be

(partly) remedied.


the world are urging greater democratic accountability for inter-national organisations.37

The transnationalisation of civil society and the increasing role of NGOs

Civil society and its role in democracy is an issue which has been muchdiscussed in the social sciences, particularly after the transitions inEastern Europe and Latin America.38 A very basic explanation of ‘civilsociety’ is ‘the space of uncoerced human association and also the set ofrelational networks . . . that fill this space’.39 The more specific under-standing of the concept is debated, one central problem being whetherthe concept should include the market, notably corporations. Themajority of writers support the view that civil society is best analysedwithin the framework of a three-part setting, which distinguishesbetween the state, the economy and civil society, and which allowsthe discussion to differentiate questions concerning the autonomy ofthe market and the promotion of commercial interests from questionsabout the role of (non-commercial) civil society.40 That is also how theconcept should be understood here.

It is generally held that democracy presupposes, or at least benefitsfrom, a strong civil society.41 With his empirical study of the regions of

37 A/58/817, 11 June 2004, pp. 8, 24. See also section 7.2.38 The concept of civil society itself has a longer history, however. For a collection of

articles describing the background of the concept and the present debate, see RobertFine and Shirin Rai (eds.), Civil Society: Democratic Perspectives, London: Frank Cass, 1997.

39 Michael Walzer, ‘The Concept of Civil Society’, in Michael Walzer (ed.), Toward a GlobalCivil Society, Providence and Oxford: Berghahn Books, 1995, p. 7.

40 See, e.g., Jean Cohen, ‘Interpreting the Notion of Civil Society’, in Walzer, Toward aGlobal Civil Society, p. 36 and, in the same volume, Kai Nielsen, ‘Reconceptualizing CivilSociety for Now’, pp. 43 ff. and Young, ‘Inclusion and Democracy’, pp. 157 ff. All threewriters build on an understanding of civil society thatwas elaborated by, among others,Antonio Gramsci and Jurgen Habermas, see Jurgen Habermas, for example, BetweenFacts and Norms: Contributions to a Discourse Theory of Law and Democracy, Cambridge: PolityPress, 1996, pp. 44–45, 75, 329 ff; The Inclusion of the Other: Studies in Political Theory,Cambridge: Polity Press, 1998, pp. 108–109, 249; Jean Grugel (ed.), Democracy withoutBorders: Transnationalization and Conditionality in New Democracies, London: Routledge,1999, p. 12. For a thorough examination of different understandings and usages of ‘civilsociety’, aswell as critique of the civil society–market distinction, see JohnKeane,GlobalCivil Society?, Cambridge University Press, 2003, pp. 2 ff., 75–88.

41 Michael Walzer states that: ‘The subject is of great interest just now because of theargument that democracy requires a strong and lively civil society – if not for the sake ofits initial formation then for the sake of its coherence and stability over time.’ Walzer,Toward a Global Civil Society, p. 1. See also, e.g., Morten Kjaerum, The Contributions ofVoluntary Organisations to the Development of Democratic Governance, in Ann McKinstryMicou and Birgit Lindsnaes (eds.), The Role of Voluntary Organisations in Emerging


Italy, Robert Putnam investigated ‘the conditions for creating strong,responsive, effective representative institutions’, the overarching ques-tion being why some democratic governments succeed and others fail.One of the results of the study was that ‘Democratic engagement isstrengthened, not weakened, when it faces a vigorous civil society.’42

The World Bank, often criticised by NGOs and non-governmental net-works, makes the connection between a strong voluntary sector andsustainable development, and advises governments to welcome a widerrole for NGOs and to allow and foster a strong civil society participatingin public affairs.43 In 1995, the World Bank commissioned an NGO – theInternational Center for Not-for-Profit Law – to give best practice adviceon national legislation that could provide a healthy climate for NGOs.44

The concept of ‘civil society’ is itself undergoing a transformation inparallel with globalisation. In former days, when state and society wasconceived, organised and experienced as coextensive, civil society had

Democracies: Experiences and Strategies in Eastern and Central Europe and South Africa: TheDanish Centre for Human Rights and the Institute of International Education, 1993,p. 13; Grugel, Democracy without Borders, pp. 12, 159; Marks, The Riddle of All Constitutions,p. 59, (without using the expression ‘civil society’); and UN documents A/RES/55/96,Promoting and Consolidating Democracy, 28 February 2001, Preamble, para. 11, A/RES/54/173, Strengthening the Role of the United Nations, 15 February 2000, Preamble, paras. 7 and10 and E/CN.4/RES/2000/47, Promoting and Consolidating Democracy, 24 April 2000,Preamble, para. 10, paras. 1e (viii–x).

42 Putnam thereby concluded that Tocqueville, who in the 1830s had found that civilassociations contributed to the effectiveness and stability of democracy in America, wasright. Robert D. Putnam,Making Democracy Work: Civic Traditions in Modern Italy, PrincetonUniversity Press, 1993, pp. 89, 182, referring to Alexis de Tocqueville, Democracy in America(eds. J. P. Mayer andM. Lerner.), New York: Anchor Books, 1969. More concretely, Putnamstudied, inter alia, associational life as demonstrated by numbers of and membership inprivate associations, see Putnam,Making Democracy Work, pp. 83–120.

43 John D. Clark of the World Bank NGO Unit, in the Introduction to Draft World BankHandbook on Good Practices for Laws Relating to Non-Governmental Organizations, Prepared forthe World Bank by the International Center for Not-for-Profit Law, 1997, pp. 3–4.

44 Draft World Bank Handbook on Good Practices for Laws Relating to Non-GovernmentalOrganizations, p. 3. Among the recommendations made in the Handbook are, inter alia,that laws governing NGOs should be written and administered so that it is relativelyquick, easy and inexpensive to establish anNGOas a legal person; thatNGOs should havethe same rights, privileges, powers and immunities as are generally applicable to legalpersons; and that the laws governing NGOs should require certain minimum provisionsin the NGO‘s governing documents. Suchminimum provisions should include, e.g., thatthe highest governing body (assembly of members or board of directors) must meet witha given frequency, that the governing body is the sole body with power to amend thebasic documents of the organisation or decide uponmerger, split up, or termination andthat it must approve the financial statements of the organisation. Ibid. pp. 31, 34, 49. Seealso Leon E. Irish, Robert Kushen and Karla W. Simon, Guidelines for Laws Affecting CivicOrganizations, New York: Open Society Institute, 2004.


the ‘same boundaries as the political community’.45 As identities andsolidarity are globalised, ‘transnational civil society’ is becoming anincreasingly frequent term in academic literature.46 This expressionemphasises the fragmentation and internal struggle of internationalsocial movements, while other writers prefer the term ‘global civilsociety’ in order to express optimism and a belief in globally sharedvalues.47 Within the international legal discipline, Thomas Franckvisualises an era of ‘new communitarianism’, where:

The sense of community once fostered by townmeetings and chats across whitepicket fences increasingly [is] being facilitated by discourse on the Internet or inco-operative efforts on behalf of Amnesty International, Human Rights Watchcommittees, or the World Wildlife Fund.48

In spite of the differences between these conceptualisations of civilsociety, they share the view that modern civil society and NGOs createnew social spaces, transnationally and independently of states.49

Thus, while state relations, the power structures of financial actorsand themass media are becoming globalised, NGOs and other groups incivil society seem to be undergoing a corresponding development.50

45 Walzer, Toward a Global Civil Society, p. 3; Beck, What is Globalization?, p. 64.46 See, e.g., Beck, What is Globalization?, pp. 64 ff; Richard Falk, Law in an Emerging Global

Village: A Post-Westphalian Perspective, New York: Transnational Publishers, 1998, p. 37;Keck and Sikkink, Activists Beyond Borders, pp. 1 ff., 33; Anthony Clark Arend, Legal Rulesand International Society, Oxford University Press, 1999, p. 175 (on ‘transnationalorganisations’); and Anne-Marie Slaughter, ‘Building Global Democracy’, 1 ChicagoJournal of International Law (2000), p. 225. Keck and Sikkink recognise that networks areorganised around shared values and discourses, but lack convincing studies onsomething resembling a global civil society, Activists Beyond Borders, p. 33.

47 See e.g. Falk, Law in an Emerging Global Village, pp. 38–39 and Habermas, The Inclusion of theOther, p. 127. Gordenker and Weiss write about a ‘world civil society’, in Weiss, BeyondUN Subcontracting, p. 42. John Keane uses the concept of global civil society while at thesame time stressing its complexity, see Global Civil Society?, pp. 17–20. For a criticalapproach to the concept, see Boli and Thomas (eds.), Constructing World Culture, p. 17.

48 Thomas M. Franck, The Empowered Self, Oxford University Press, 1999, p. 90.49 Beck,What is Globalization?, p. 65. Globalisation of identities and the growth of a ‘global’

or ‘transnational’ civil society may seem to be a process of inclusion and increasingcontacts between individuals. However, it also excludes large groups and geographicalareas. It is a striking fact that 90 per cent of the world’s population still has no access tocomputers, Brian Urquhart, ‘Between Sovereignty and Globalisation: Where Does theUnited Nations Fit In?’, The Second Dag Hammarskjold Lecture, Dag HammarskjoldFoundation, Uppsala, 2000, p. 15. According to OECD calculations of the ‘digital divide’,there were eighty-two Internet hosts per 1,000 inhabitants in OECD countries inOctober 2000, but only 0.85 in non-OECD countries, OECD, Understanding the DigitalDivide, Paris: OECD Publications, 2001, p. 8.

50 The concept of civil society is further discussed and defined in section 1.2.


The traditional interest groups – national political parties – are in thedecline, at least in Western Europe.51 This trend is possibly related tothe weakening role of the state, at which political parties direct theirefforts, and a more general development towards a society wheregroups and identities are more complex and issue-oriented. Differentcampaigns illustrate this development, such as the InternationalCampaign to Ban Landmines (ICBL) which was formed by six NGOs in1991 as a flexible network for the co-ordination of initiatives and callsfor a ban on antipersonnel landmines.52 In September 1997, 121 statesnegotiated and adopted the Convention on the Prohibition of the Use,Stockpiling, Production and Transfer of Anti-Personnel Mines and onTheir Destruction. One month later, the ICBL and its co-ordinator JodyWilliams received the Nobel Peace Prize. By then, over 1,000 organisa-tions and groups were affiliated to the ICBL, but the campaign had solittle organisational structure that it was unable to receive the prizecheque.53 Today, the ICBL represents over 1,100 international, regional,national and local NGOs and groups in over sixty countries. Severalother NGOs have received the Nobel Peace Prize, one example beingMedecins Sans Frontieres which was awarded the Prize in ‘recognitionof the organization’s pioneering humanitarian work on severalcontinents’.54

There are several similar examples of NGOs and networks that havereceived attention for their work. Other, more controversial, examplesinclude the widespread consumer boycotts and anti-globalisation pro-tests which have exerted increasing pressure on governments on thenational plane, as well as in connection with intergovernmental meet-ings.55 This was evident in the chaotic events taking place in relation tothe meetings of the WTO in Seattle in November 1999 and of the IMF

51 Peter Mair, Party System Change: Approaches and Interpretations, Oxford: Clarendon Press,1997, p. 78. At the same time, the large and well-known NGOs, such as AmnestyInternational, the ICRC and Greenpeace, have lost members in Sweden, Jussi Svensson,‘Ras for organisationer’, Dagens Nyheter, 25 July 2001.

52 Information obtained at the ICBL website, www.icbl.org, 13 February 2001.53 The Norwegian Nobel Committee, Press Release 10 October 1997, and the American

Society of International Law, Proceedings of the 92nd Annual Meeting: The Challenge ofNon-State Actors, 1–4 April, 1998, p. 35.

54 The Norwegian Nobel Committee, Press Release 15 October 1999. Other examplesinclude Amnesty International in 1977 and the ICRC in 1994 and 1963.

55 Castells has identified ‘socialmovements against the new global order’ as a key trend inshapingmodern identity: ‘Along with the technological revolution, the transformationof capitalism, and the demise of statism, we have experienced, in the last quarter of thecentury, the widespread surge of powerful expressions of collective identity that


and the World Bank in Prague in September 2000, for example. Suchloosely organisedmassmovements are another face of globalisation, andthey use its infrastructure for their own purposes. Anti-globalisationcampaigns have set up websites on the meetings of internationalfinancial institutions (IFIs) with information on the organisation ofprotests, transportation, safety, accommodation, etc., for example.Similar mass protests regarding a wide range of issues seem to bebeing carried out more and more frequently on a national as well asan international plane.56 It is evident that these protest campaignsinvolve and are supported by diverse groups with different objectives,allied only for the purpose of protesting against the globalisation ofeconomies, and that they would not be able to have such a strongimpact on intergovernmental bodies without the use of modern infor-mation technology.

The growth of the international NGO sector illustrates increasingprivate contacts across national borders. According to the Yearbook ofInternational Organizations, there were 3,733 international NGOs in 1972;in 2003, this number had grown to 49,471.57 This increase is reflected inthe number of NGOs in consultative status with the UN ECOSOC: forty-one NGOs were granted consultative status in 1948, 377 in 1968; inAugust 2004 the number had risen to 2,534.58 Some NGOs have

challenge globalization and cosmopolitanism on behalf of cultural singularity andpeople’s control over their lives and environment. These expressions are multiple,highly diversified, following the contours of each culture, and of historical sources offormation of each identity. They include proactivemovements, aiming at transforminghuman relationships at their most fundamental level, such as feminism andenvironmentalism. But they also include a whole array of reactive movements thatbuild trenches of resistance on behalf of God, nation, ethnicity, family, locality, that is,the fundamental categories ofmillenial existence now threatenedunder the combined,contradictory assault of techno-economic forces and transformative socialmovements.’ Castells, The Power of Identity, p. 2.

56 One example of protests that transcended national frontiers were the protests over fuelprices carried out in Britain and on the European continent during the autumn of 2000,see ‘Borders Are No Barriers to Public Discontent Over Fuel Prices’, International HeraldTribune, September 23–24, 2000, p. 8. Another famous example of a successfulconsumer boycott is the 1995 campaign organised by Greenpeace against Shell toprevent the sinking of an oil platform in the North Atlantic.

57 Yearbook of International Organizations, ed. 40, vol. 1B, 1999/2000, appendix 3, p. 2738. Thetotal number of international NGOs includes, however, 390 recently reported andnot yet confirmed NGOs, and 4,191 non-active or dissolved organisations. That an NGOis ‘international’ is determined in the Yearbook by seven criteria, such as its aim,membership and structure, appendix 2, p. 2735.

58 A/53/170, Arrangements and Practices for the Interaction of Non-Governmental Organizations inAll Activities of the United Nations System, 10 July 1998, para. 2, and List of NGOs in Consultative


considerable resources at their disposal. One striking example is theInternational Committee of the Red Cross (ICRC), which in 2003 had aheadquarters budget of close to 95 million Euro and a field budgetamounting to 606 million Euro.59 States exist whose gross domesticproduct (GDP) is smaller than this.

The ICRC’s budget, although impressive, is almost totally dependenton financial support from governments.60 In that regard, the financesof Amnesty International are more interesting. The international bud-get adopted by Amnesty for the financial year April 2003–March 2004reached almost 36 million Euro.61 The organisation’s work is financedthrough donations from its members and the public – no funds aresought or accepted from governments, with the exception of supportfor certain projects on human rights education.62 The budget repre-sents approximately one-quarter of the estimated income likely to beraised during the year by the movement’s national sections to financetheir campaigning and other activities.63 The World Wide Fund forNature (WWF, formerlyWorldWildlife Fund) also belongs to the groupof large and powerful international NGOs.WWF International’s opera-ting income for the year 2002 amounted to over 65 million Euro, ofwhich around 17 per cent was derived from governments and aidagencies.64

Themembership of large NGOs is another interesting factor. Amnestyhas 1.8 million members and subscribers in over 150 countries and

Status with ECOSOC, 4 August 2004, published online at www.un.org/esa/coordination/ngo/pdf/INF_List.pdf.

59 The budgets amounted to 149.9 and 959.8 million Swiss Francs respectively, exchangerate as of 18 October 2004. ICRC, ICRC Annual Report 2003, Geneva, 2004, p. 33.

60 In the year 2003, 79.9 per cent of the contributions came from governments, 8.8 percent from the European Commission and 6 per cent from the National Societies. ICRCAnnual Report 2003, p. 33.

61 The budget amounted to £25,375,000, exchange rate as of 18 October 2004. AmnestyInternational Report 2004 (section ‘What is AI? – Finances’), accessible online athttp://web.amnesty.org/report2004/aboutai-eng, as of 17 October 2004.

62 Amnesty International accepts governmental grants solely for projects concerninghuman rights education which have been approved of in advance by the InternationalExecutive Committee. For instance, the Irish section has carried out human rightseducation in Albania with financial support from the Irish government. Explanationgiven in a letter from the Swedish section of Amnesty International, 1 March 2001, onfile with the author.

63 Amnesty International Report 2004 (section ‘What is AI? – Finances’).64 Its operating expenditure was slightly higher. WWF Annual Report 2002, World Wide

Fund for Nature, December 2002, Insert: Financial Report 2002, p. 2.


territories.65 The ICRC and Red Crescent Movement comprises 181national societies and 97 million members and volunteers.66

Globalisation also has an impact on solidarity and on the state asdistributor of support and foreign aid. As states encounter increasingfiscal problems in the transnational financial system, a situation isdeveloping where ‘rich and poor no longer sit at the same [distributive]table of the national state’.67 NGOs, on the other hand, can actindependently of territorial boundaries. According to a report issuedby the UN Secretary-General in 1998, NGOs collectively constitutethe second largest source of development assistance in terms of nettransfers.68 The World Food Programme (WFP) reports that NGOsdeliver more official development assistance (ODA) than the entire UNsystem, excluding theWorld Bank and the InternationalMonetary Fund(IMF).69 In 1995–6, 30 per cent of official development assistance inSweden, 29 per cent in Switzerland and 25 per cent in Norway waschannelled through NGOs.70 Although the considerable sums ofmoney that are distributed by international NGOs in different regionsof the world are usually derived from governmental sources, thequestion can be asked whether such organisations are adequatelyrepresented on the international plane by national governments alone.

65 Amnesty International International Report 2004 (‘What is AI? – Finances’), accessible onlineat http://web.amnesty.org/report2004/aboutai-eng, as of 17 October 2004. Theexpression ‘members and subscribers’ is used due to the fact that the procedure forobtaining membership is different for different national sections of Amnesty. Somesections regard all personswho support the organisation financially asmembers, whileother sections require an explicit declaration of will in order for a person to become amember. ‘Members and subscribers’ thus means all persons who are members orsupport the organisation financially. Explanation given in a letter from the Swedishsection of Amnesty International, 1 March 2001, on file with the author.

66 Red Cross and Red Crescent website, accessible online at http://www.ifrc.org/who/society.asp, as of 17 October 2004.

67 Beck, What is Globalization?, p. 67.68 A/53/170, Arrangements and Practices for the Interaction of Non-Governmental Organizations in

All Activities of the United Nations System, 10 July 1998, para. 2.69 WFP/EB.1/2000/5/2, Evaluation Reports, Agenda item 5, Thematic Evaluation of WFP–NGO

Partnerships, 20 December 1999, para. 11.70 Ian Smillie, ‘NGOs and Development Assistance: A Change in Mind-Set?’, in Thomas G.

Weiss (ed.), Beyond UN Subcontracting: Task-Sharing with Regional Security Arrangements andService Providing NGOs, New York: St Martin’s Press, 1998, p. 185. The Organization forEconomic Co-operation and Development (OECD) has reported that the proportion oftotal aid from member countries channelled through NGOs rose from 0.7 per cent in1975 to 3.6 per cent in 1985, and at least 5 per cent in 1993–94, Hudock, NGOs and CivilSociety, p. 3.


An interesting reflection of the increasingly transnational role of non-state actors can be seen in the field of international standardisation andregulation. New quasi-legal areas of regulation, developed by IGOs,expert bodies and other non-state actors, are spreading under labelssuch as lex mercatoria, codex alimentarius and ISO standardisation.71 Largetransnational corporations (TNCs) and groups of international NGOsadhere to self-regulating instruments in the form of codes of conduct.Such normative ‘grey zones’ break the necessary connection betweenlaw and state, both by suggesting that non-state actors can produce‘law’, and by creating regulation on a transnational scale, i.e. irrespec-tive of national borders.72

Legitimacy and international law

It has already been described how the international legal system excludeslarge groups from international representation. It has also beendiscussedhowglobalisation affects the traditional democratic processes of the statein a way that weakens or disrupts the links between decisions affectingthe individual and national democratic processes. The increase and trans-nationalisation of civil society has been illustrated by the size, numbersand strength of NGOs and social movements formed around commoninterests rather than around national identity.

71 By ‘lex mercatoria’ is usually meant a body of norms developed by internationalcommercial arbitrators on the basis of customary transnational business practice.However, there are divergent views on the terminology as well as the legal quality ofsuch norms, which is well illustrated by the fact that one of the major books on thesubject includes two ‘concurrent introductions’, one written by a scholar who is of theopinion that lex mercatoria is law and the otherwritten by a scholar of the opposite view,see Thomas E. Carbonneau (ed.), Lex Mercatoria and Arbitration: A Discussion of the New LawMerchant, revised edn., The Hague: Kluwer Law International, 1998, pp. xix–xxv. For athorough review of the nature and terminology of lex mercatoria, see Klaus Peter Berger,The Creeping Codification of Lex Mercatoria, The Hague: Kluwer Law International, 1999,pp. 37 ff. ‘Codex alimentarius’ refers to setting of standards for food safety, notably by theCodex Alimentarius Commission, which is a body of experts jointly brought togetherby the World Health Organization (WHO) and the Food and Agriculture Organization(FAO). ‘ISO standardisation’ refers to the international standards set in many differentfields by the non-governmental International Organization for Standardization (ISO).Although states are free to accept or reject such standards, they have significantinfluence on domestic regulations, as the General Agreement on Tariffs and Trade(GATT) Uruguay Round Agreements give them a privileged position, Bodansky, ‘TheLegitimacy of International Governance’, p. 619. Bodansky also discusses the legitimacyand nature of expert standards in more general terms.

72 Gunther Teubner (ed.), Global Law Without a State, Aldershot: Dartmouth, 1997,pp. 10–11.


The question now to be discussed is whether the fact that the demo-cratic links between international law and the individual are weak orsometimes non-existent is a problem. It can be asserted that inter-national law should, as it does now, focus primarily on effectiveness,which means that control of territory is the important criterion forinternational representation. However, it will be argued here thatweak and missing democratic links have serious implications for thelegitimacy of international law as a system, and that this is a problemwhich needs to be addressed, for several reasons.73

First, it needs to be considered how ‘legal legitimacy’ should be under-stood. One well-known conceptualisation of the term has been elabo-rated by Thomas Franck, who perhaps sparked the discussion on thelegitimacy of international law and its relation to concepts such asdemocracy and fairness.74 According to Franck, ‘Legitimacy is a pro-perty of a rule or rule-making institution which itself exerts a pulltowards compliance on those addressed normatively because thoseaddressed believe that the rule or institution has come into being andoperates in accordance with generally accepted principles of right pro-cess.’75 There are four paradigms of right process that legitimate theinternational system of rules and rule-making (i.e. the secondary rulesof international law), namely (i) that states are sovereign and equal, (ii)that their sovereignty can be restricted only by consent, (iii) that con-sent binds and (iv) that states, in joining the international community,are bound by the ground rules of that community.76 On this basis,Franck elaborates indicators of the legitimacy of the primary rules ofinternational law. These indicators are pedigree (or symbolic valid-ation), determinacy, coherence and adherence.77

73 It can be held that the difference between rule and system legitimacymay be somewhatmisleading in international law. As Buchanan points out, the ‘system’ is extremelydecentralised and seldom gives rise to either/or choices or decisions to reject or acceptinternational law in toto. Allen Buchanan, Justice, Legitimacy, and Self-Determination: MoralFoundations for International Law, Oxford University Press, 2004, p. 301.

74 Thomas Franck, The Power of Legitimacy Among Nations, Oxford University Press, 1990;‘The Emerging Right to Democratic Governance’, pp. 46–91; The Principle of Fairness inInternational Law and Institutions.

75 Franck, The Power of Legitimacy Among Nations, p. 25, and The Principle of Fairness inInternational Law and Institutions, p. 26.

76 Franck, The Principle of Fairness in International Law and Institutions, p. 29.77 Franck, ‘The Emerging Right to Democratic Governance’, p. 51, and The Principle of

Fairness in International Law and Institutions, pp. 30 ff.


Franck’s notion of legitimacy as applied to international law is thuskept within the framework of the state-centric community. Still,it would be misleading to say that Franck regards the internal condi-tions of a state as irrelevant to international law. He approaches thisquestion from another angle. He constructs a concept of ‘fairness’which is understood as the composite of two independent and poten-tially adversary variables: legitimacy and distributive justice. Law’sprimary objective is to achieve a negotiated balance between the needfor order and the need for change. Fairness discourse is the process bywhich the law, and those who make the law, seek to integrate thesetwo variables. Franck contends that ‘The issue is not a society’s defini-tion of fairness in any particular instance, but rather the opennessof the process by which those definitions are reached. This processis applied by the judiciary and by legislative bodies. However, the mostimportant instrument for fairness discourse is democratic electoralpolitics . . . Attention must therefore be paid to democracy as a rightprotected by international law and institutions.’78 Further, he arguesthat:

fairness discourse requires fairness in the selection of participants. At presentthe term ‘global discourse’ suggests a conversation between nations. That lim-ited view, however, is wrong. Not only is it inaccurate, overlooking the manyactors – multinational corporations, churches, service organizations, gender-and ethno-culturally specific groups, scientific networks, and a myriad others –who are already part of this discourse. In addition, and centrally, the mentalmodel’s wrongness lies in its unfairness.79

Franck thus attaches importance to the democratic process as a part of theglobal fairness discourse, on the national as well as the internationalplane. His view is normative in the sense that he suggests that interna-tional law should rest on a more inclusive national fairness discourse.However, the fact that the global fairness discourse of today de facto

excludes large groups does not lead Franck to question the legitimacy(or the validity) of international law. Nor does he discuss the ‘compli-ance pull’ of primary rules of international legal rules in relation toindividual persons in undemocratic states.80 In other words, states areregarded as entities, not as aggregates of persons, when the legitimacyof international rules is to be assessed.

78 Franck, The Principle of Fairness in International Law and Institutions, p. 83. 79 Ibid., p. 484.80 On ‘compliance pull’, see Franck, ‘The Emerging Right to Democratic Governance’,

p. 51, and The Principle of Fairness in International Law and Institutions, pp. 25 ff.


In a later work, Franck has connected the legitimacy of global andregional institutions to the issue of unrepresentative regimes. Theinitiatives of such institutions cannot, in Franck’s view, be perceivedas legitimate and fair if any significant number of the participants in thedecision-making process are unresponsive to the views and values oftheir own people: ‘In the legitimacy of national regimes resides thelegitimacy of the international regime.’81

In a recent book by Allen Buchanan, amoral construct of legitimacy isdeveloped.82 Buchanan first claims that ‘An entity has political legiti-macy if and only if it is morally justified in exercising political power’,and that ‘an entity that exercises political power is morally justified indoing so only if itmeets aminimal standard of justice, understood as theprotection of basic human rights’.83 This notion of legitimacy serves asthe point of departure for an examination of the legitimacy of theinternational legal system. Buchanan carries out this examination bycriticising the view that state consent is the basis for legitimacy ininternational law, which he describes as ‘moral minimalist’. Threeexamples are given in order to reveal the weakness of this view:(i) consent given by a state signing a peace treaty at gunpoint can countas state consent, (ii) it is false to characterise the current system as onein which the state consent super-norm is satisfied, particularly bearingin mind international customary law and (iii) to assume that stateconsent to norms confers legitimacy within a system in which manystates do not represent the interests of their citizens is committing theerror of treating states as if they were moral persons in their own right,rather than being institutional resources for human beings.84 In conse-quence of the latter example, state consent to international legal normscannot show that their enforcement on other collectivities and indivi-duals ismorally justified.85 Buchanan’s ownmodel of system legitimacyis justice-based and includes several factors, the most important ofwhich is the protection of basic human rights. He also suggests thatwhile it is difficult to imagine that much can be done to achieve ‘genu-ine [i.e. individual] democratic global governance’ at present, makinginternational institutions more representative of individuals and more

81 Franck, ‘Legitimacy and the Democratic Entitlement’, in Gregory H. Fox and Brad R. Roth(eds.), Democratic Governance and International Law, Cambridge University Press,2000, p. 31.

82 Allen Buchanan, Justice, Legitimacy, and Self-Determination: Moral Foundations forInternational Law, Oxford University Press, 2004.

83 Ibid., pp. 233–234. 84 Ibid., pp. 303–305. 85 Ibid., p. 309.


accountable to individuals, as both individuals and as members of non-state groups, would contribute to democratising the international legalsystem, thereby increasing its system legitimacy.86

It is interesting that Buchanan’s criticism of the state consent view onthe legitimacy of international law breaks through the state-centricparadigm while partly kept inside it. The moral basis of Buchanan’stheory can be criticised for subjectivity and for a problem pointed outby Habermas, i.e. that morality cannot serve as the basis for legitimacyin a diverse and pluralistic society. On the other hand, the ‘morality’which is used as a parameter for legitimacy is to a great extent alreadyincorporated into international law in the form of human rights law,however vague its rulesmight be. Buchanan’s proposal that, while thereis little hope for a genuine democratisation of international law withina reasonable time, making international institutions more representa-tive of individuals and more accountable to individuals, as both indivi-duals and asmembers of non-state groups, draws attention to the role ofNGOs and of civil society in general.

In declaring that individual democratic global governance is pre-sently out of reach, Buchanan takes a more cautious view than DavidHeld, who is known for advocating cosmopolitan democracy. In Held’sview, it is the individualwho is the holder of the ultimate right to choose.He states that ‘The idea of democracy derives its power and signifi-cance . . . from the idea of self-determination; that is, from the notion thatmembers of a political community – citizens – should be able to choosefreely the conditions of their own association, and that their choicesconstitute the ultimate legitimation of the form and direction of theirpolity.’87 Held elaborates a ‘principle of autonomy’, which insists on‘the people’, in contrast to state sovereignty, determining the condi-tions of their own association.88 He claims that consent through elec-tions based on territory or state is problematic because of national,regional and global interconnectedness. Held asks: which is the rele-vant community, what is the relevant constituency and to whom dodecision-makers have to justify their decisions? Instead, he builds amodel of cosmopolitan democracy, which ‘transcends the particularclaims of nations and states and extends to all in the ‘‘universal

86 Ibid., pp. 323, 315.87 David Held, Democracy and the Global Order: From the Modern State to Cosmopolitan

Governance, Cambridge: Polity Press, 1995, p. 145.88 Ibid., p. 147.


community’’’.89 States would ‘wither away’ in this system and would nolonger be the sole centres of legitimate power within their own borders,while people would enjoy multiple citizenships – political membershipin the diverse political communities which significantly affectedthem.90 As has been mentioned above, in line with Held’s ideas, SusanMarks proposes a ‘principle of democratic inclusion’, according towhich everyone should have the right to a say in decision-making thataffects them.91

While David Held’s theory is primarily a vision for the future, hisview on legitimacy and the role of non-state actors in cosmopolitandemocracy provides interesting points of reference for today’s inter-national legal system. His ‘principle of autonomy’, which insists on‘the people’ determining the conditions of their own association,perforates the walls of state sovereignty and emphasises politicalmembership in the diverse political communities which significantlyaffect individuals.

An important point of reference for discussions on legitimacy and lawin the democratic state is, of course, Jurgen Habermas. Accordingto Habermas, law can claim legitimacy only if it can meet withthe assent of all possibly affected persons in a discursive process oflegislation that in turn has been legally constituted.92 The discourseprinciple by which the legitimacy of a rule is determined thus lies at alevel which is conceptually prior to the distinction between law andmorality. In Habermas’ view, moral or ethical reflections can never bythemselves account for the legitimacy of law in complex, pluralisticsocieties.93

Like Held, Habermas finds the ultimate basis for legal legitimacy inthe consent of the individual. By requiring that consent should be givenin a situation of rational discourse, he also adds a procedural dimensionwhich is interesting for analysing international law. The discoursetheory also places much importance on a ‘vibrant civil society’ in

89 Ibid., pp. 18, 228.90 Held, Democracy and the Global Order, p. 233. See also ‘From Executive to Metropolitan

Multilateralism’, in David Held and Mathias Koenig-Archibugi (eds.), TamingGlobalization: Frontiers of Governance, Cambridge: Polity Press 2003, pp. 160–186.

91 Marks, The Riddle of All Constitutions, pp. 109, 119.92 Habermas, Between Facts and Norms, pp. 107–110.93 With the discourse principle, Habermas also overcomes the tension between popular

sovereignty and human rights. Habermas, Between Facts and Norms, pp. 104–107, 118 ff.


general and on civil society organisations in particular, as will be ela-borated below.94

Conclusion: the role of NGOs in a discourse model of international law

Common to several of the conceptualisations of legitimacy describedabove is the fact that the ultimate source of legal legitimacy is placed inthe individual. While Franck’s model of legitimacy is an exception inthis regard, his theory reaches the individual through the proposeddemocratic entitlement and fairness discourse. In other words, all fourconceptualisations adhere to the principle that law, national as well asinternational, should be based on the assent of the people, i.e.individuals.

For the purpose of the present study, Habermas’ concept of legiti-macy will be used. According to this, as we have seen, law can claimlegitimacy only if it can meet with the assent of all possibly affectedpersons in a discursive process of legislation that in turn has beenlegally constituted. This construction of legitimacy has several advant-ages. First, the concept itself avoids the choice between law and moral-ity and can therefore, at least potentially, be accepted by the proponentsof different ‘schools’ of law, as well as by different regions and cultures.Secondly, it embraces both primary and secondary rules. Thirdly, itinsists on a discursive process which includes all possibly affectedpersons, thus adding qualitative elements to the way in which decisionsare taken. And, fourthly, it links the issue of legitimacy with theindividual which is, in my view, the most reasonable understanding ofthe concept.

The acceptance of a concept of legal legitimacy that is ultimatelylinked to the individual implies, of course, a standpoint that interna-tional law is not legitimate. This is, however, not the same thing asarguing that international law should be legitimate. It can, as has beenstated above, very well be argued that international law should, as itdoes today, rest primarily on effectiveness – or, in other words, on stateconsent. Nevertheless it is argued here that the flawed legitimacy ofinternational law is a problem which needs to be addressed, for severalreasons. First and foremost, the view that the international communityshould aim at a legitimate legal system is a moral standpoint. However,there are also more functional arguments which support such a view.

94 Habermas, ‘Postscript to Faktizitat und Geltung’, 20 Philosophy and Social Criticism (1994),p. 147, The Inclusion of the Other, p. 251 and Between Facts and Norms, pp. 355 ff.


One such argument is ‘compliance pull’, as explained by ThomasFranck. Although the primary addressees of international law are states,it is ultimately up to individuals to comply with international rules.States are, after all, only aggregates of individuals.95 As the inter-national legal system expands into new and wider fields, the group ofpeople who are expected to comply with international law grows. Forexample, international environmental law is applied not only by gov-ernment officials, but also (at least indirectly) by private entities andpersons, such as shipping companies and industries.

More generally speaking, the weak legitimacy of international lawmay affect the more general sense within the community that interna-tional legal rules created by states are acceptable because they are basedon the assent of the population in many countries. The knowledge thatdecisions in international law on important and far-reaching issues aretaken by governments in international fora without any participationfrom a large part of the world’s population might add to a feeling offrustration among people in democratic as well as undemocratic coun-tries. There is a risk that the democracy deficit in international law is orbecomes one component in an erosion of people’s faith and engage-ment in traditional political processes. This type of frustrationmay havebeen a contributing factor to the mass protests held in connection withmany high-level intergovernmental meetings. Franck points out thatlegitimation serves to reinforce the perception of communitas on thepart of community members. This should be made true also for inter-national law.96

Yet another argument for strengthening the legitimacy of inter-national law through political participation of unrepresented groupshas been touched upon earlier. Any system of law should be coherent inthe sense that one field of law should not contradict another. Accordingto Franck’s theory of legitimacy, coherence is one element of legallegitimacy, thus also affecting the compliance pull of a given norm.Bearing in mind the strong support for human and discursive rights in

95 Kelsen contends that: ‘The statement that states as juristic persons are subjects ofinternational law does not mean that individuals are not the subject of the obligations,responsibilities, and rights established by this law. It onlymeans that individual humanbeings are indirectly and collectively, in their capacity as organs or members of thestate, subjects of the obligations, responsibilities, and rights presented as obligations,responsibilities, and rights of the state.’ Hans Kelsen, Principles of International Law, 2ndedn., New York: Holt, Rinehart & Winston, 1966, pp. 194–195.

96 Franck, The Principle of Fairness in International Law and Institutions, p. 26.


international treaty law, the problem of people(s) and groups that areunrepresented in international fora should not be neglected.

Finally, it is reasonable to assume that decisions taken on the basis ofan inclusive discursive process are of a better quality than decisionstaken by a more limited and partly unrepresentative group of peoplewithout any process of external consultation. Information is lost inundemocratic decision processes and many points can be left uncon-sidered. This is not rational within a legal system which embraces awhole world, with everything that this implies in terms of plurality,differences and inequalities.

The question that follows is what such a position means for theinternational decision-making process. My platform for that discussionis, in spite of what has been stated above, a conviction that the interna-tional system is not ready for direct representation of people(s) andgroups in actual decision-making, at least not outside specified areasof law. Inmy view, themodel built by Held and others of a cosmopolitandemocracy has great advantages and can serve as a useful point ofreference for important reforms. At the same time, I do not think thata transformation to a whole new system of international governancewill be possible for a long time. This means that the views and proposalspresented in this study are based on an acceptance of a state-centricinternational legal system as a fact.

That being said, it should be considered what a discourse perspectiveon international law implies in practical terms. In order to do this,Habermas’ theories need to be recalled. Although his work focuses onthe national arena, I find that his proceduralist paradigm is helpful inputting intergovernmental decision-making in a wider perspective.97 Inthe national context, Habermas claims that the success of deliberativepolitics depends on the institutionalisation of the corresponding proce-dures and conditions of communication, as well as on the interplay ofinstitutionalised deliberative processes with informally developed pub-lic opinions.98 Although discourse theory is primarily modelled on anation-state which grants political rights for its citizens, it is significantfor the international arena as it ‘corresponds to the image of a decentredsociety, albeit a society in which the political public sphere has been

97 As regards the domain of international law, Habermas expresses some hope for a morepeaceful and just political and economic world order, but points out that it isunthinkable ‘without the kind of policies that could only be carried out under pressurefrom a mobilized global civil society’. Habermas, The Inclusion of the Other, p. 127.

98 Habermas, Between Facts and Norms, p. 298.


differentiated as an arena for perception, identification, and treatmentof problems affecting the whole of society’.99

Habermas emphasises the importance of a ‘robust’ civil society and thatformal, institutionalised deliberation should be open for input frominformal public spheres. There must be channels of communicationbetween the public sphere and a strong civil society, where mobilisedpublics find a basis in associations distinct from both state and economy.At the same time, Habermasmakes it clear that, within the boundaries ofthe public sphere, civil society actors can acquire only influence, notpolitical power. In the national context, public influence is transformedinto communicative power only after it has passed through the filters ofthe institutionalised procedures of democratic opinionandwill formationinto legitimate law-making: ‘Not influence per se, but influence trans-formed into communicative power legitimates political decisions.’100

The main arena of Habermas’ discourse theory is the nation-state.101

The question still lingers to what extent his model of deliberative poli-tics can be applied to the international level. Habermas has himselfanswered this question in a book on the conditions for democracy in aglobalised context.102 The overriding question put by Habermas is: ‘Howcan we envision the democratic legitimation of decisions beyond theschema of the nation-state?’103 The vision of cosmopolitan democracysuggested byHeld is rejected byHabermas, who argues that rather than a‘world state’, a less demanding basis of legitimacy in the organisationalform of an international negotiating system, which already exists, needsto be found.104 Although conventional procedures for decision-makingand political representation can never be entirely replaced, Habermascontends that a discourse-theoretical understanding of democracychanges the theoretical demands placed on the legitimacy conditionsfor democratic politics. Factors such as a functioning public sphere, thequality of discussion, accessibility and the discursive character of opinionand will formation can contribute tomeeting the procedural demands ofcommunicative and decision-making processes. Habermas continues:

Supposedly weak forms of legitimation then appear in another light. Forexample, the institutionalised participation of non-governmental organizations

99 Ibid., p. 301. 100 Ibid. and p. 371.101 For Habermas’ view on the concept of nation-state, see, e.g., Between Facts and Norms,

pp. 492 ff. and The Postnational Constellation, pp. 63–65.102 Habermas, The Postnational Constellation, pp. 58–112. 103 Ibid., p. 110.104 Ibid., pp. 107–109.


in the deliberations of international negotiating systems would strengthenthe legitimacy of the procedures insofar as mid-level transnational decision-making processes could then be rendered transparent for national publicspheres, and thus be reconnected with decision-making procedures at the grass-roots level.105

Thus, although a conceptualisation of legitimacy which is based on thewill of the individual can never find a substitute for conventionaldemocratic procedures for decision-making and political representa-tion, discourse theory can be instrumental in identifying ways tostrengthen the legitimacy of the international (legal) system.106

On the basis of what has been said above, it seems clear that thelegitimacy of international law can be strengthened if internationalfora are made more transparent and open for participation from awide range of groupings and interests from different sectors and seg-ments of society, such as indigenous peoples, minorities with cultural,linguistic or religious characteristics, academia, trade unions, religiousassociations, other NGOs, etc.107 In accordance with the discourse prin-ciple, decisions should be based on rational discourse which is inclusiveof all possibly affected persons. Andrew Linklater has specificallyengaged in the question of the dialogical community of internationalrelations in the context of globalisation and ethnic fragmentation. Heargues that, as globalisation erodes traditional concepts of community,the critical project needs to be reconstructed: it ‘requires normative andsociological accounts of more inclusive communication communitieswhich introduce unprecedented forms of dialogue between the radi-cally different’.108 Systematically excluded groups and victims of trans-national harm should enjoy rights of participation. According toLinklater: ‘Wider universalities of discourse which increase the rangeof permissible disagreements would represent a significant shiftbeyond the Westphalian era of classical sovereign states and their

105 Ibid., pp. 110–111.106 Considering that a ‘global democracy’ is not possible, Van Rooy proposes the

‘compromise solution’ of a ‘Supplementary Democracy’, which can be summarised asan amplification of existingmechanisms that promote broader civic participation andgreater accountability, Alison Van Rooy, The Global Legitimacy Game: Civil Society,Globalization and Protest, New York: Palgrave Macmillan, 2004, pp. 137–140.

107 On the recognition of minority interests through a deliberative understanding ofdemocracy, see Steven Wheatly, ‘Deliberative Democracy and Minorities’, 14 EJIL(2003), pp. 507–527.

108 Andrew Linklater, The Transformation of Political Community, Cambridge: Polity Press,1998, p. 5.


totalising projects.’109 As has been mentioned above, Susan Marks alsoendorses the importance of wide participation with the principle ofdemocratic inclusion.110

The precise role that should be played by different non-state enti-ties in different contexts depends on their special characteristics andinterests, and on what issues are to be discussed. A variety of solutionsand mechanisms are possible, and many are already in place. Forexample, the International Labour Organization (ILO) provides an interest-ing example of direct decision-making power for non-governmentalgroups which are representative of certain sectors of society and whichhave special competence. Other possibilities are advisory, consultativeor participatory status, special committees composed of representativesof different interests, observers and working groups. Several proposalsfor reform of the United Nations have been presented in the report ofthe Panel of Eminent Persons on Civil Society and UN Relationships, aswill be described in chapter 7.111 I shall not discuss which solution ismost appropriate for different actors, fora and issues, but shall focusexclusively on the role of NGOs. The legal survey in part II of the bookwill show that there are many different forms of contact in placebetween NGOs and IGOs.

Before we embark on the main topic of the study, some clarificationsneed to be made about the view of NGOs which is adopted here.Discussions about NGOs often focus on whether these organisationsare ‘good’ or ‘bad’. Naturally, these questions need to be asked. As hasbeen touched upon above, NGOs are self-appointed, often orientedtowards a single issue, mostly based in the North, often have their basisin themiddle class and are often not accountable to the people onwhosebehalf they claim to speak.112 Keohane states that NGOs are often notvery transparent, but, ‘perhaps more seriously, their legitimacy andtheir accountability are disconnected’. The claims of NGOs to a legiti-mate voice over policy are based on the disadvantaged people on whose

109 Ibid., pp. 107–108. 110 Marks, The Riddle of All Constitutions, pp. 109–110.111 See section 7.2 and A/58/817, 11 June 2004.112 For example, Kenneth Anderson, formerly a Director of the Human Rights Watch

Arms Division, ‘sharply questions whether the Ottawa Convention and the processleading up to it represents any real ‘‘democratization’’ of international law’, seeKenneth Anderson, ‘The Ottawa Convention Banning Landmines’, the Role ofInternational Non-governmental Organizations and the Idea of International CivilSociety’, 11 EJIL (2000), p. 91. Alison van Rooy has included a whole list (as a reflectionof ‘a growing chorus of complaint’) of critical statements on NGOs, see The GlobalLegitimacy Game, pp. 2–3.


behalf they claim to speak, but they are internally accountable towealthy people in rich countries, who do not experience the result oftheir actions. However, Keohane considers that NGOs on the wholewield influence only through persuasion and lobbying. Apart frommoral claims and media presence they are relatively weak, and theyare highly vulnerable to threats to their reputations. His conclusion istherefore that ‘we should not demand strong internal accountability ofrelatively weak NGOs’.113 Another point relating to the critique of theNGO community is made by Van Rooy, who observes that one need notbe legitimate in order to voice an opinion. It is in relation to issues suchas negotiation of treaties that legitimacy through representationbecomes relevant.114

While these problems are important they are, in my view, not theprimary issue in a discussion on the role of NGOs in international law.Because of the democratic deficit in international law, resulting fromboth the rules on the representation of populations and from globalisa-tion, diverse and conflicting information, opinions and concernsof different groups are needed in the fora where international lawis made and applied. The criticism often heard about NGOs thusloses some of its relevance. With a view of the international systemthat is based on Habermas’ theories of democratic discourse, the focusis placed on the procedure of communicative action, rather than onspecific actors. As Habermas states, a discourse-theoretical understand-ing make supposedly weak forms of legitimation appear in anotherlight.115

It should also be observed that the focus of this study is more on non-governmental organisation as a form or amethod than on the characteror role of particular NGOs. Although this distinction may seem artifi-cial, I think it needs to be upheld for the purpose of the discussion onlegitimacy. In other words, the question whether international lawshould provide and protect a form of political participation throughnon-governmental organisation is on another and more fundamentallevel than the issue of which particular organisations should be entitledto participate in which particular situations. There is no guarantee thatthere are sufficient links between unrepresented groups and NGOs to

113 Robert A. Keohane, ‘Global Governance andDemocratic Accountability’, in David Heldand Mathias Koenig-Archibugi, Taming Globalization: Frontiers of Governance,Cambridge: Polity Press, 2003, p. 148.

114 Van Rooy, The Global Legitimacy Game, p. 138.115 Habermas, The Postnational Constellation, p. 111.


provide these groups with a say. Nevertheless, an international systemwhich protects the right to non-governmental organisation and whichallows NGOs to participate provides a form and a possibility for anyonewho seeks to take part in international (legal) discourse.116

What is the more precise shape of the associational form of ‘non-governmental organisation’ will be discussed in the next section on thedefinition of the concept. However, such criteria can specify only thebasics. The autonomy of the NGO communitymeans that its diverse andunco-ordinated character is intrinsic. I believe that Iris Marion Younghas a point when she reflects that:

Particular attributes of civil society make possible its self-determining, opposi-tional, communicative, and creative aspects. The value of civil society liesprecisely in the fact that its activities are voluntary, diverse, plural, often locallybased, and relatively uncoordinated among one another.117

It should be stressed that I do not suggest that NGOs should have ageneral right to vote or negotiate alongside governments in inter-national bodies.118 The role of NGOs which is in focus of this study israther one of ‘public participation’. It is an underlying assumption ofthis study that the regulated participation of NGOs as informants andpartners of dialogue in intergovernmental fora is a phenomenon that ishealthy for the overall functioning of international law.119 The partici-pation of NGOs in international law cannot make it ‘democratic’, but it

116 The Panel of Eminent Persons on Civil Society and UN Relationships suggests in itsfinal report that the United Nations can make an important contribution tostrengthening democracy and widening its reach by helping to connect nationaldemocratic processes with international issues and by expanding roles for civil societyin deliberative processes, A/58/817, 11 June 2004, p. 24.

117 Young, Inclusion and Democracy, pp. 52, 189. She expresses the same ideal regardingcommunicative democracy: ‘A strong communicative democracy, I conclude, needs todraw on social group differentiation, especially the experience derived from structuraldifferentiation, as a resource. A democratic process is inclusive not simply by formallyincluding all potentially affected individuals in the same way, but by attending to thesocial relations that differentially position people and condition their experiences,opportunities, and knowledge of society. A democratic public arrives at objectivepolitical judgement from discussion not by bracketing these differences, but bycommunicating the experiences and perspectives conditioned by them to oneanother.’ Ibid., p. 83.

118 This has, however, proved to be a solution in some areas, such as the making ofinternational labour law within the ILO.

119 Marks endorses this view. She asserts that the processes of international law should bemade more inclusory, and that NGOs should ‘take up a central role in the framing ofinternational legal norms’. Marks, The Riddle of All Constitutions, p. 113.


can to some extent contribute to strengthening its legitimacy.120 From amore pragmatic point of view, co-operation with NGOs also helps tobring information and expertise into intergovernmental fora andinform the public of the decisions taken there.121 This needs to bekept in mind at times when new forms of threats from non-state actorsmay make the state community close the doors to its meeting rooms.The questions of what type of participation and which NGOs or actorsshould be entitled to participate should be regulated by internationallaw – ideally by rules and practices which are themselves based on anopen and transparent decision-making procedure which allows forparticipation by those affected.

1.3 The diversity of NGOs: definitions and delimitations

Definitions of ‘NGO’ in international instruments and doctrine

There is no generally accepted definition of the term ‘non-governmentalorganisation’ in international law. As will be demonstrated throughoutthis book, each area of law that relates to NGOs establishes its owndefinition, as a reflection of the fact that the status and legal frameworkfor NGOs varies from one part of international law to another.

This study will take the same approach, i.e. outline a definition onlyfor the purpose of the study. In order to define the concept of ‘non-governmental organisation’, it needs first to be considered for whatpurpose a definition is needed. Part II of this book consists of a legalsurvey of existing international rules and practices which relate toNGOs. Parts I and III, which include the theoretical framework andthe concluding chapter 10, have the purpose of placing the legal surveyin a wider context of more principled issues and drawing some conclu-sions on the basis of the legal survey as regards the role of NGOs ininternational law. The study is thus to a great extent a reflection of

120 As mentioned above, Kenneth Anderson is highly critical of the idea that theparticipation of NGOs in international law-making means a ‘democratisation’ ofinternational law, and even suggests that such processes ‘should be seen as a step inthe development of global transnational elites at the expense of genuinely democratic,but hence local, processes’, Anderson, ‘The Ottawa Convention Banning Landmines’,pp. 91–120. See, on the other hand, Asher Alkoby, ‘Non-State Actors and theLegitimacy of International Environmental Law’, 3 Non-State Actors and International Law(2003), p. 97.

121 See also the final report of the Panel of Eminent Persons on Civil Society and UNRelationships, A/58/817, 11 June 2004, p. 26.


existing law. I shall therefore elaborate a definition which builds onthose that are already used in different parts of international law. Thedefinition used is thus not normative and meant as a suggestion forinternational law as it ought to be, but merely a reflection of interna-tional law as it is.

The definition thus elaborated is also used as a delimitation of thestudy, which does not cover other non-state actors such as indigenouspeoples, minorities, corporations, liberation movements or terroristgroupings.122 It is possibly the case that the more general status androle of NGOs in international law is best discussed in relation to othernon-state actors. The focus in this study will, however, be almost exclu-sively on NGOs. In other words, suggestions and viewpoints on NGOspresented here – such as the above considerations on the role of NGOs inrelation to the legitimacy of international law – should not be inter-preted as excluding the possibility that the same considerations mayalso be valid for other actors. The concentration on NGOs is made forpractical reasons – the topic of NGOs is vast, and in spite of the fact thatthis study is fairly extensive, it does not cover all aspects of NGOs.

In order to elaborate a definition of NGO which builds on existinginternational legal rules, the definitions used in different areas of inter-national law need to be examined. A natural starting point is Article 71of the UN Charter. This is a comparatively old provision contained in anauthoritative instrument of universal application, and the way it hasbeen interpreted can be considered typical for how NGOs are usuallyregarded. Moreover, it was with the drafting of the UN Charter that theterm ‘non-governmental organisation’ became the commonly usedterm in international law.123 However, Article 71 of the UN Charterdoes not contain any definition itself, but simply provides that:

The Economic and Social Council may make suitable arrangements for consult-ation with non-governmental organizations which are concerned with matterswithin its competence. Such arrangements may be made with internationalorganizations and, where appropriate, with national organizations after con-sultation with the Member of the United Nations concerned.

When the arrangements for consultation with NGOs were revised in1950, the following definition of ‘NGO’ was established:

122 It is recognised that the distinctions are not clear in all cases, such as when terroristgroups establish and fund NGOs. In practice, the question of what should be regardedas an NGO needs to be examined on a case-by-case basis.

123 White, International Non-Governmental Organizations, p. 3.


Any international organization which is not created by intergovernmentalagreement shall be considered as a non-governmental organization for thepurposes of these arrangements.124

Apart from making ‘international’ a criterion, the resolution describedNGOs only by what they were not, i.e. not created by an intergovern-mental agreement.125 The present provisions on the ECOSOC consulta-tive arrangements include a more elaborate definition:

Any such organization that is not established by a governmental entity orintergovernmental agreement shall be considered a non-governmental organ-ization for the purpose of these arrangements, including organizations thataccept members designated by governmental authorities, provided that suchmembership does not interfere with the free expression of views of theorganization.126

The word ‘such’ refers to the conditions for the establishment of con-sultative relations with an NGO that are enumerated in this and pre-vious paragraphs of the resolution. These conditions include:

1. the aims and purposes of the organization shall be in conformitywith the spirit, purposes and principles of the UN Charter,

2. the organization shall be of recognized standing within the particularfield of its competence or of a representative character,

3. the organization shall have established headquarters with an executiveofficer

4. the organization shall have a democratically adopted constitution,and that

5. the organization shall have a representative structure with appropriatemechanisms of accountability to the members.127

The above criteria should be seen in relation to the provisions concern-ing suspension and withdrawal of consultative status. Such a measurecan be taken, for example, ‘If an organization clearly abuses its status byengaging in a pattern of acts contrary to the purposes and principles ofthe Charter of the United Nations including unsubstantiated or

124 E/RES/288(X), Review of Consultative Arrangements with Non-Governmental Organizations,27 February 1950, para. 8. Just as the 1950 resolution, the first arrangements set upconditions for consultative status, but did not include any definition of ‘NGO’, E/43/Rev. 2, Arrangements for Consultation with Non-Governmental Organizations, 21 June 1946.

125 It is not surprising that the term ‘NGO’ has been criticised for the same reason, see,e.g., Kjærum, ‘The Contributions of Voluntary Organisations’, p. 13.

126 E/RES/1996/31, Consultative Relationship between the United Nations and Non-GovernmentalOrganizations, 25 July 1996, para. 12.

127 Ibid., paras. 2, 9–12.


politically motivated acts against Member States of the United Nationsincompatible with those purposes and principles.’128 This means thatpolitical parties and liberation movements cannot achieve consultativestatus under the resolution. The resolution’s definition of ‘NGO’ inpara. 12 does not at first seem to exclude such entities. However, if theprovisions on suspension and withdrawal are read in conjunctionwith the definition and the first criterion for consultative status, i.e.that the ‘aims and purposes of the organisation shall be in conformitywith the spirit, purposes and principles of the UN Charter’, politicalparties and liberationmovements do indeed fall outside the scope of thedefinition: at least that is how the resolution is interpreted.129 The sameline of reasoning seems to be applicable to violent and criminal groups.It can be observed that, although political parties cannot obtain con-sultative status, international organisations of national political partiesor groupings, such as the Liberal International and the SocialistInternational, are accepted.130

It is rather striking that there is no explicit requirement for a non-profit-making aim. Such a requirement is however implicit in para. 2,which states that the aims and purposes of the organisation shall be inconformity with the spirit, purposes and principles of the UN Charter.That a non-profit-making aim is indeed a condition for the granting ofconsultative status is also supported by para. 13 of the resolution, whichprovides that the basic resources of the organisation shall be provided‘in the main part’ from contributions of the national affiliates or othercomponents or from individual members, as well as by the practice ofthe Council Committee of NGOs as regards the granting of consultativestatus.131 It can be noted that this latter provision is placed after thedefinition of ‘non-governmental organisation’, which is given in para. 12and refers to previous provisions. It does not seem, in other words,

128 Ibid., para. 57(a).129 The term ‘organisation’ is defined in the resolution as ‘non-governmental

organizations at the national, subregional, regional or international levels’, ibid.,para. 4 (emphasis added). A few liberation movements have obtained observer statuswith the UN, see chapter 7 in this volume.

130 Both have general consultative status, see list of NGOs in consultative status withECOSOC, accessible online at www.un.org/esa/coordination/ngo/pdf/INF_List.pdf, as of19 October 2004. See also Willetts, ‘The Conscience of the World’, p. 4.

131 Financial contributions or other support that comes directly or indirectly from agovernment shall be ‘openly declared’. E/RES/1996/31, Consultative Relationship betweenthe United Nations and Non-Governmental Organizations, 25 July 1996, para. 13. See alsosection 7.2.


that a non-profit-making aim is formally part of the definition itself.Nothing is said in the resolution about national juridical personality. Allin all, it can be seen that the UN ECOSOC’s definition of ‘NGO’ can beunderstood only by following a rather winding interpretative paththrough the different provisions of the resolution.

The Council of Europe (CoE) first decided to establish arrangementsfor consultative relationship with NGOs in 1951.132 The presentarrangements are divided into two categories – participatory status forinternational NGOs and partnership for national NGOs.133 Quite sur-prisingly, the resolutions do not contain any definition of the term‘NGO’, and only a few conditions for the establishment of participatoryor partnership status are set out. That the scope of the resolution onparticipatory status excludes commercial bodies is, however, clear fromthe Preamble, which refers to ‘co-operation between the Council ofEurope and the voluntary sector’. The Preamble of the resolution onpartnership status makes no explicit reference to a non-profit-makingaim, but puts the role of NGOs into a context of public opinion anddemocracy. The lack of an explicit requirement of a non-profit-makingaim in the two resolutions is particularly surprising considering thefact that the term ‘non-governmental organisation’ in the EuropeanConvention on Human Rights has long since been interpreted in thepractice of the monitoring bodies as being inclusive of commercialactors.134

Another important instrument for NGOs adopted within the CoE is theConvention on the Recognition of the Legal Personality of InternationalNon-Governmental Organisations (1986).135 Article 1 states that:

This Convention shall apply to associations, foundations and other private insti-tutions (hereinafter referred to as ‘NGOs’) which satisfy the following conditions:

a. have a non-profit-making aim of international utility;b. have been established by an instrument governed by the internal law of

a Party;

132 Council of Europe Resolution (51) 30 F, Relations with International Organisations, bothIntergovernmental and Non-governmental, 3 May 1951.

133 Council of Europe, Committee of Ministers, Resolution Res(2003)8, Participatory Statusfor International Non-Governmental Organisations with the Council of Europe, and ResolutionRes(2003)9, Status of Partnership between the Council of Europe and National Non-GovernmentalOrganisations with the Council of Europe, both adopted on 19 November 2003.

134 See section 5.3 for further information on the requirements for consultative status andon the arrangements within the CoE generally, see section 7.4.

135 ETS no. 124. See also section 4.2.


c. carry on their activities with effect in at least two States; andd. have their statutory office in the territory of a Party and the central

management and control in the territory of that Party or of anotherParty.

The Explanatory Report to the Convention makes it clear that the term‘private’ in this context means that the NGO does not ‘exercise prero-gatives of a public authority’. The condition of a ‘non-profit aim ofinternational utility’ is commented on in the Explanatory Report in amanner that refers to NGOs in general:

An NGOmust not have a profit-making aim. This condition distinguishes NGOsfrom commercial companies or other bodies which exist to distribute financialbenefits among their members.136

The Explanatory Report indicates that a trade union is an NGO,although it may promote an increased income of its members, while acommercial company is not. This is also in accordance with other legalinstruments of the CoE, such as the European Social Charter AdditionalProtocol providing for a System of Collective Complaints.137 An NGOmay make a profit, the Report explains further, in connection with agiven operation, if that operation is to serve its non-profit-making aim.The expression ‘of international utility’ means that the NGO must notbe simply of national or local utility, but of benefit to the internationalcommunity. Political parties and other political organisations whoseaims and activities are centred on the domestic situation of a givencountry are thereby excluded.138

In 2002, the CoE adopted the Fundamental Principles on the Status ofNon-Governmental Organisations in Europe.139 Although this is not a

136 Explanatory Report on the European Convention on the Recognition of the Legal Personality ofInternational Non-Governmental Organisations, Strasbourg, 1986, p. 7.

137 Article 1 of the Protocol refers to international organisations of employers and tradeunions and ‘other international non-governmental organisations’. The monitoringbodies have interpreted ‘non-governmental organisation’ in Article 34 of the EuropeanConvention on Human Rights, as well as its predecessor Article 25, to include tradeunions and commercial companies.

138 Explanatory Report on the European Convention on the Recognition of the Legal Personality ofInternational Non-Governmental Organisations, Strasbourg, 1986, pp. 7–8. The requirementof ‘International utility’ is further specified in the Report by reference to the UNCharter and the Statute of the Council of Europe, p. 8.

139 Fundamental Principles on the Status of Non-Governmental Organisations in Europe andExplanatory Memorandum, Council of Europe, May 2003 (adopted at multilateralmeetings held in Strasbourg from 19 to 20 November 2001, 20 to 22 March 2002 and5 July 2002). See also section 4.2.


binding document of international law, the Principles are interesting asan expression of the member states’ view on NGOs, as well as for beingrather elaborate in their description of the characteristics of non-governmental organisations. In specifying the meaning of the term‘NGO’, the Principles declare that:

1. NGOs are essentially voluntary self-governing bodies and are nottherefore subject to direction by public authorities. The terms used todescribe them in national law may vary, but they include associations,charities, foundations, funds, non-profit corporations, societies andtrusts. They do not include bodies which act as political parties.

2. NGOs encompass bodies established by individual persons (naturaland legal) and groups of such persons. They may be national orinternational in their composition and sphere of operation.

3. NGOs are usually organisations which have a membership, but this isnot necessarily the case.

4. NGOs do not have the primary aim of making a profit. They do notdistribute profits arising from their activities to their members orfounders, but use them for the pursuit of their objectives.

5. NGOs can be either informal bodies, or organisations which have legalpersonality. They may enjoy different statuses under national law inorder to reflect differences in the financial or other benefits which theyare accorded in addition to legal personality.

The most specific point in para. 1 is the exclusion of political partiesfrom the definition. This exclusion is in line with how the ECOSOCresolution on consultative status is interpreted. On the other hand,political parties fall under the term ‘non-governmental organisation’in Article 34 of the European Convention on Human Rights.140 In theExplanatory Memorandum, it is stated that the political parties areexcluded from the scope of the Fundamental Principles because theyare the subject of separate provisions from those applicable to NGOs ingeneral under most national laws.141 The exception is thus made morefor practical reasons than as a matter of principle. The Memorandumalso makes it clear in relation to para. 1 that trade unions and religiouscongregations are within the scope of the Fundamental Principles,although this is not stated explicitly. Paragraph 4 includes an importantexplanation in relation to bodies that have the primary aim of makingprofit, which are not within the ambit of the Principles. This is in

140 See section 5.3.141 Fundamental Principles on the Status of Non-Governmental Organisations in Europe and

Explanatory Memorandum, p. 18.


accordance with most other international documents relating to NGOs.The point made in para. 5 as regards informal bodies is, however, moreunusual. The Explanatory Memorandum makes it clear that ‘the textacknowledges the principle that an NGO may wish to pursue its activ-ities without having legal personality to that end, and it is importantthat national law should do likewise. Furthermore, in some countries,the distinction between NGOs with legal personality and those withoutdoes not exist.’142

The Organization of American States (OAS) adopted Guidelinesfor Participation by Civil Society Organizations in OAS Activitiesin 1999. The Guidelines build on and specify the 1971 Standardson Cooperative Relations.143 Interestingly enough, neither thenew Guidelines nor the background material explain the introduc-tion of the term ‘civil society organisation’ (CSO), although the 1971Standards use the expression ‘non-governmental organisation’. If thetwo definitions are compared it can, however, be noted that ‘CSO’ is awider term, as the Standards define ‘NGO’ as ‘any national or inter-national organization made up of natural or juridical persons of aprivate nature’, while the 1999 Guidelines speak of ‘any national orinternational institution, organization, or entity’.144 The 1999 Guidelinesset up conditions for civil society organisations to obtain statuswith the OAS, but these conditions are not connected to the definitionas such.

Attempts to define NGOs and examine the issue of their internationallegal status were made early within the non-governmental sector itself.In 1910, a first initiative was taken within the Institut de Droit

International. The project was discussed on different occasions over theyears, and in 1950 a concrete proposal was formulated for a conventionwith the purpose of determining ‘les conditions d’attribution d’un statutinternational a des associations d’initiative privee’.145 The final text did notreally answer the question about international legal status, but was asuggestion for states to recognise certain rights for NGOs within their

142 Ibid., p. 19.143 AG/RES. 57 (I-0/71, Standards on Cooperative Relations Between the Organization of American

States and the United Nations, its Specialized Agencies, and Other National and InternationalOrganizations, 23 April 1971.

144 Ibid., para. 2(c), and CP/RES. 759 (1217/99), Guidelines for Participation by Civil SocietyOrganizations in OAS Activities, 15 December 1999, para. 2 (emphasis added).

145 Annuaire de l’Institut de Droit International, 1950, Tome I, pp. 547–548.


respective jurisdictions, and the text never resulted in the adoption bystates of an international convention.146

The organisations in focus of the project were labelled ‘associationsd’initiative privee’, defined in Article 2 in the following way:147

Les associations internationales visees a l’article 1er sont des groupements depersonnes ou de collectivites, librement crees par l’initiative privee, qui exer-cent, sans esprit de lucre, une activite internationale d’interet general, endehors de toute preoccupation d’ordre exclusivement national.148

In other words, the members of the Institute and its rapporteur SuzanneBastid identified a set of criteria for the identification of a private inter-national organisation worthy of international legal protection, namely(1) that it should be freely created by private initiative, (2) that it shouldhave a non-profit-making aimand (3) that it shouldperform internationalactivity in a sphere of general, and not purely national, interest.

It is apparent that definitions of the term ‘non-governmental organ-isations’ vary according to the circumstances. Each institution has itsown definition elaborated for its own purposes. It is natural that theapproach within the doctrine is likewise functional. There is a widespectrum of definitions and explanations of ‘NGO’.149 One publicationthat discusses the definition of ‘NGO’ at great length is the

146 Article 1 defining the scope of the proposed Convention, reads: ‘Chacune des Partiescontractantes s’engage a reconnaıtre aux associations internationales et auxfondations d’interet international les droits definis dans la presente Convention . . .’The proposed rights include ‘le benefice du traitment de droit commun le plusfavorable, accorde aux associations nationales a but non lucratif, notamment en ce quiconcerne l’exercise de leur activite, la perception des cotisations, l’acquisition et lapossession des biens meubles et immeubles’, Annuaire de l’Institut de Droit International,1950, Tome II, pp. 384–386. One of the members of the Commission working on theproject doubted its utility because of the limited rights that could be set out in aninternational instrument, Annuaire de l’Institut de Droit International 1950, Tome I,pp. 623–624. On the European level, there has been an instrument of a comparablecharacter since 1986, namely the above-mentioned European Convention on theRecognition of the Legal Personality of International Non-GovernmentalOrganisations, which entered into force in 1991.

147 TheEnglish-speakingmember called them ‘non-governmental organisationsbrought intobeing by private initiative’, Annuaire de l’Institut de Droit International, 1950, Tome I, p. 584.

148 Annuaire de l’Institut de Droit International, 1950, Tome II, p. 353.149 See, e.g., Boli and Thomas (eds.), Constructing World Culture (adopting the definition of

international NGO used in the Yearbook of International Organizations), p. 20; Schermersand Blokker, International Institutional Law, p. 32; Willetts, ‘The Conscience of the World’,pp. 3–5; White, International Non-Governmental Organizations, pp. 7 ff.; Hermann H.-K.Rechenberg, Non-Governmental Organizations, EPIL, 3, Amsterdam: North-Holland, 1997,p. 612, and Lador-Lederer, International Non-Governmental Organizations, p. 60.


above-mentioned Draft World Bank Handbook on Good Practices for LawsRelating to Non-Governmental Organizations, which states:

As used in this Handbook, ‘nongovernmental organization’ (NGO) refers to anassociation, society, foundation, charitable trust, nonprofit corporation, or otherjuridical person that is not regarded under the particular legal system as part ofthe governmental sector and that is not operated for profit – viz., if any profits areearned, they are not and cannot be distributed as such. It does not include tradeunions, political parties, profit-distributing cooperatives, or churches.150

This definition is narrower than those described earlier as, apart fromrequiring a non-profit-making aim and autonomy from the governmen-tal sector, it excludes several groups of entities which are otherwise oftenincluded, i.e. trade unions and churches. Political parties are excluded bysome other definitions as well, as has been described above. It should beobserved, however, that the reason for excluding these groups from thescope of the handbook was purely practical: most legal systems havespecial rules for such entities, and the objective of the Handbook was todiscuss national legislation, not international law.151

The variety of definitions of ‘NGO’ is a reflection of the ad hoc

approach to NGOs of IGOs and the international legal system in general.As will be shown later in the study, different bodies and rules takedistinct approaches to NGOs and other entities, and very little aboutlegal status can be assumed simply on the basis of the fact that an entityis labelled ‘NGO’. The variety of definitions may be regarded as a pro-blem. For instance, some members of the NGO sector itself may wishto be clearly distinguishable from other groups. To the extent thatgovernment-organised non-governmental organisations (‘GONGOs’),other entities with hidden agendas or even organised criminal groupshide behind an NGO facade, it is obvious that transparent and publicinterest NGOs need to distinguish themselves from those entities.152

Moreover, it may be a problem that the term ‘NGO’ says so little aboutwhat an organisation really is while the common usage of the term maygive the impression that there is a general understanding of the concept.

There are, however, also positive aspects to this ad hoc approach. Mostimportantly, it is a considerable advantage that there is no external

150 Draft World Bank Handbook on Good Practices Relating to Non-Governmental Organizations, p. 19.151 Ibid, p. 21.152 The term ‘GONGO’, as well as others, such as ‘QUANGO’ (quasi-non-governmental

organisation), are used in, e.g., the Draft World Bank Handbook on Good Practices Relating toNon-Governmental Organizations.


regulation (except in national law) of a sector whose existence andstrength depends on private initiatives and diversity. This also entailsflexibility for IGOs and other bodies to find the partners and forms ofco-operation that suit a particular context best. The latter aspect means,on the other hand, that the control is to a large extent held by thevarious bodies with which NGOs seek to co-operate or influence. If inthe future NGOs, as a category, become actors with a recognised anddefined legal standing in international law, a definition with specifiedcriteria will have to be formulated, just as for states today.

Defining ‘NGO’ for the purpose of the study

It has been explained above that, as a large part of this book is adescription of existing law, a definition which builds on those that arealready used in different parts of international law is most suitable forour purpose. This means that the definition which will be elaborated isnot intended to have a normative dimension, but is merely a reflectionof international law as it stands.

In order to construct a definition on the basis of present internationallaw, the common elements of existing definitions and practices need tobe identified. The first, and most obvious, element which is part of alldefinitions above, andwhich is also accepted here, is the requirement ofautonomy from the state, i.e. the ‘non-governmental’ requirement. Thisfactor can be divided into three components. First, there is generalagreement that an NGO is not established by intergovernmental agree-ment, or otherwise by governments. Secondly, it is free from govern-mental influence, at least in a formal sense. In practice, many NGOsdepend on governmental or intergovernmental funding, which ofcourse has a negative impact on their independence. However, if organ-isations that accept governmental funding were excluded from thecategory of ‘NGOs’, not many would remain. It can also be observedthat IGOs generally accept that NGOs which uphold formal relations(such as consultative status) with them receive funding from govern-ments, provided that such funding is openly declared. To be free fromgovernmental influence also means that an NGO as a principle, cannothave members who represent the government.153 A third aspect of the

153 In practice, many officials within government agencies are also members of NGOs.However, if they are not members as representatives of the government this should, inmy view, normally not be regarded as altering the non-governmental character of theorganisation. On the other hand, ‘hybrid NGOs’, which officially comprise NGOs,governments and/or IGOs, cannot be regarded as non-governmental. One example of


‘non-governmental’ element is that NGOs do not perform public func-tions or wield governmental powers, as has been clarified in the case-lawof themonitoringbodies of theEuropeanConventiononHumanRights.154

A second element of the concept of NGO concerns the aim of suchorganisations. Most international instruments on NGOs cover a widerange of entities and do not require NGOs to have any specific type ofobjectives. The ECOSOC arrangements for consultative status can beused as an illustration of this. Under the ECOSOC resolution, it isrequired that ‘the aims and purposes of the organisation shall be inconformity with the spirit, purposes and principles of the UNCharter’.155 It is also stated in the resolution that the consultative statusof an organisation can be suspended or withdrawn if it clearly abuses itsstatus by engaging in a pattern of acts contrary to the purposes andprinciples of the Charter, including unsubstantiated or politically motiv-ated acts against UN member states incompatible with those purposesand principles. Further, consultative status can be suspended or with-drawn in cases where there exists substantiated evidence of influencederived from proceeds resulting from internationally recognised criminalactivities such as the illicit drugs trade, money laundering or the illegalarms trade.156 Rather than positively formulating specific conditionsregarding the aim of an NGO, the resolution thus seems to aim at exclud-ing (i) entities that have profit as their primary objective, (ii) politicalparties and subversive groups, and (iii) entities which promote or useviolence, or have clear connections with criminality. I shall deal witheach of these groups separately and then discuss whether internationallaw in general requires that NGOs should have specific types of objectives.

The requirement that an NGO be not-for-profit is shared bymost defini-tions in international legal instruments, such as the ECOSOC consult-ative arrangements, the European Convention on the Recognition of

such an organisation is the International Union for the Conservation of Nature (IUCN),which includes seventy-seven states, 114 government agencies and more than 800NGOs.

154 In 16 Austrian Communes and Some of their Councillors v. Austria, Admissibility decision of 31May 1974, the European Commission for Human Rights found that local governmentorganisations such as communes,which exercise public functions onbehalf of the state,are clearly ‘governmental organisations’ as opposed to ‘non-governmentalorganisations’ entitled to bring complaints under the Convention. See also HolyMonasteries v. Greece, Admissibility decision of 5 June 1990, Finska Forsamlingen i Stockholmand Hautaniemi v. Sweden, Admissibility decision of 11 April 1996, and section 5.3.

155 E/RES/1996/31, Consultative Relationship between the United Nations and Non-GovernmentalOrganizations, 25 July 1996, para. 2.

156 Ibid., para. 57a–b.


the Legal Personality of International Non-Governmental Organisations,the Council of Europe (CoE) Fundamental Principles on the Status of NGOsand the CoE arrangements for participatory status of international NGOs.One exception is the European Convention on Human Rights, whichalso grants locus standi before the Court to commercial bodies. In fact, allprivate entities are entitled to bring a case to theCourt as long as the victimrequirement is satisfied. Considering that the rationale of the Conventionis human rights protection, it is not surprising that the definition is widerthan in other instruments.

I shall adhere to the common understanding that an NGO is not-for-profit. What this means more concretely is clarified in the CoEFundamental Principles on the Status of NGOs, which state that ‘NGOsdo not have the primary aim of making a profit. They do not distributeprofits arising from their activities to their members or founders, butuse them for the pursuit of their objectives.’157 It can be observed that adefinition of ‘NGO’ that excludes commercial bodies adheres to thedominating understanding of civil society as distinct from both theeconomy and the state.158

Most international instruments exclude political parties from thedefinition of ‘NGO’. This is the case with, for instance, the EuropeanConvention on the Recognition of the Legal Personality of InternationalNon-Governmental Organisations, the ECOSOC consultative arrange-ments and the CoE Fundamental Principles on the Status of NGOs.Political parties are, on the other hand, not excluded by the definitionused in Article 34 of the European Convention on Human Rightsconcerning locus standi, which entitles political parties to bring casesto the European Court of Human Rights in the capacity of victims ofviolations of the Convention. In the light of what has been stated aboveabout the rationale of the Convention, this is not surprising. As I havechosen to use a definition that adheres to the most common concept ofNGO in international law, the definition used here will also excludepolitical parties. From a more normative point of view, however, itcan be considered that the need for international representation ofoppositional political groups may be strong when a state is underauthoritarian rule. Political parties are also particularly central to the

157 Fundamental Principles on the Status of Non-Governmental Organisations in Europe andExplanatory Memorandum, para. 4. See also Draft World Bank Handbook on Good PracticesRelating to Non-Governmental Organizations, p. 19, where it is explained that ‘if any profitsare earned, they are not and cannot be distributed as such’.

158 See section 1.2.


functioning of democracy; thus, even if political parties are notincluded in the understanding of ‘NGO’ used here, this does not meanthat the issue of their position on the international plane isunimportant.

It is evident that organisations that promote or use violence or have clearconnections with criminality are excluded from the common understand-ing of ‘NGO’ in international law. This condition is, for example,included in the ECOSOC consultative arrangements resolution by therequirement mentioned above that the aims and purposes of an NGOshall be in conformity with the spirit, purposes and principles of the UNCharter. In accordance with this and other international legal instru-ments, the term ‘NGO’ used here will be exclusive of organisations thatpromote or use violence or have clear connections with criminality. Itcan be observed that with the threat of terrorism the distinctionbetween peaceful NGOs and violent groups and organisations is becom-ing more important. Making a correct distinction in deciding on suchissues as consultative status requires substantial knowledge andinformation. There is also a risk that the threat of terrorism may beused as an excuse for generally restricting non-governmental access tointergovernmental fora.

In addition to excluding commercial bodies, political parties andentities that promote or use violence or have connections with crimin-ality, it needs to be considered whether international instrumentsshould formulate other requirements in relation to the objective ofNGOs. Such requirements are in fact unusual, and no such conditionswill be formulated here. One example that has already been mentionedabove is, however, the European Convention on the Recognition of theLegal Personality of International Non-Governmental Organisations,which states that NGOs should have an aim of ‘international utility’. Itshould be observed that this condition is connected to the fact that theConvention deals only with international NGOs. It thus needs toexclude NGOs which address issues of a purely national character.Nevertheless, I think it should be stated that defining ‘NGO’ in relationto its objective contradicts the autonomous and diverse character of theNGO community, and is also impractical since it makes it difficult todecidewhich organisations are NGOs andwhich are not. Is, for instance,the preservation of a minority language a cause that is of internationalutility, or is it a matter for persons belonging to theminority only? Or isit a national question? Even if international law takes a clear positionthat the protection of minorities is a question of international concern,


the example illustrates the difficulties with requirements that NGOsshould deal only with certain issues. Another type of organisation thatsome might wish to exclude from the definition is that of industrial orsimilar associations that promote profit for a particular industry, eventhough the organisation itself does not distribute profit. For instance,the Union of Arab Banks, which is an NGO in general consultative statuswith the UN ECOSOC, describes itself as ‘corner stone in the process ofbuilding and developing banking cooperation for the benefit of eco-nomic, financial, and banking development in the Arab world’.159 Itcould be questioned whether such organisations should be put on anequal footing with NGOs which promote interests of a clearly public orgeneral character, such as human rights or the protection of theenvironment, and thereby be eligible for formal status with IGOs andhave standing to file complaints and amicus curiaebriefswith internationalcourts and quasi-judicial bodies, etc. My view is, however, that distinc-tions on the basis of objective are both inappropriate and difficult. If, forexample, local tea producers in a Third World country are adverselyaffected by a World Bank project, their interest in filing a complaintthrough their common association with the World Bank InspectionPanel can hardly be seen as less legitimate than the interest of aGeneva-based NGO to file a complaint with the African Commissionfor Human and Peoples’ Rights (ACHPR) regarding an individual whohas suffered a human rights violation and who has not authorised theNGO to do so. The position that international law should not formulatepositive conditions in connection with the objective of NGOs does,however, not mean that IGOs should not adapt their procedures andprovisions regarding co-operation with NGOs to what can be regardedas suitable for a particular context or field of law.

The element of organisation in the definition poses the difficult ques-tion whether an NGO has to be legally constituted under nationallegislation, i.e. have legal personality or some form of formal statusunder national law. A related question is whether it needs statutes and ademocratic internal structure. For the purpose of describing and dis-cussing the international legal status of NGOs, I propose that it is notthe status under national law that is decisive, but the capacity of theorganisation to act in its own namewithin the international legal context.Such an element in the NGO concept is expressed in several

159 Union of Arab Banks website, accessible online at www.uabonline.org/UABWeb/profile/profile.htm, as of 20 October 2004.


international legal instruments through requirements concerning, forexample, established headquarters, a democratically adopted constitu-tion and a representative structure (all three conditions included in theECOSOC resolution) or, in other cases, the practices followed in examin-ing new applications for consultative or similar status. For instance,under the CoE arrangements for participatory status for internationalNGOs, there is no explicit requirement regarding formal status, whilethe resolution states that an NGO seeking participatory status shouldsubmit, inter alia, its statutes. Thus, there must be some form of formalstructure in order for an NGO to act under international law. It can alsobe assumed on the basis of existing international legal instruments thatan NGO should have a democratic, representative structure, although itis not entirely clear what this means in practice.

A formal structure does, however, not necessarily imply legalpersonality under national law. As was mentioned above, theCoE Fundamental Principles on the Status of NGOs take the positionthat such status is not necessary for an entity to be categorised as anNGO, since an organisation may wish to pursue its activities withouthaving legal personality, and since, in some countries, the distinctionbetweenNGOswith legal personality and thosewithout does not exist.160

A definition requiring national legal personality would also excludeorganisations or groups which seek to enjoy the right to freedom ofassociation but are hindered by the authorities through, for example,denial of registration or dissolution. It can be observed that Article 22of the ICCPR on the freedom of association protects not only NGOswith legal personality, but also de facto organisations.161 Moreover thecase-law of the monitoring bodies of the European Convention onHuman Rights demonstrates that NGOs in such a position are entitledto lodge cases with the European Court of Human Rights.162 The conceptof ‘NGO’ as understood in this book therefore includes groups lackinglegal personality under such special circumstances. At the same time, itcan be stated that most NGOs in fact do enjoy legal personality undernational law.

160 Fundamental Principles on the Status of Non-Governmental Organisations in Europe andExplanatory Memorandum, p. 19.

161 Manfred Nowak, UN Covenant on Civil and Political Rights. CCPR Commentary, Kehl amRhein: N. P. Engel, 1993, p. 387.

162 E.g., Freedom and Democracy Party (OZDEP) v. Turkey, 8 December 1999, paras. 1–12, andStankov and United Macedonian Organisation Ilinden v. Bulgaria, Admissibility decision,29 June 1998. See also section 5.3.


In sum, the definition of ‘NGO’ used in this study implies that it:

1. is ‘non-governmental’, meaning that it is established by privateinitiative, is free from governmental influence, and does not performpublic functions,

2. has an aim that is not-for-profit, meaning that if any profits are earnedby the organisation they are not distributed to its members but usedin the pursuit of its objective,

3. does not use or promote violence or have clear connections withcriminality, and

4. has a formal existence with a statute and a democratic andrepresentative structure, and does normally, but not necessarily,enjoy legal personality under national law.

For the sake of clarity, it can be repeated that no distinction will bemade here on the basis of an organisation’s objective, apart from therequirements just mentioned. NGOs have diverse objectives and forms,and include such different entities as, for example, associations, char-ities, foundations, churches and religious congregations, non-profitcorporations and trade unions, be they national or international incharacter.


2 Historical and conceptual background

2.1 Introduction

The issue of legal subjects is at the core of any legal system. As forinternational law, its very name, as well as its traditional definition as‘the body of rules which are legally binding on states in their inter-course with each other’ also determines the range of its actors.1 Thecircle seems to be closed for good. Even though it has long beenaccepted that international law is more complex than this definitionsuggests, the classical view lingers on and the concepts related to theissue of personality seem to be adapted to it. It is important to take acloser look at how the issue of the subjects of international law hastraditionally been considered, for the argument that a new actor hasacquired international legal status will inevitably be examined by refer-ence to the traditional theory. My aim in this chapter is to describe thisclassical theory as well as some alternative views, how the conceptsrelated to the issue of legal subjects have been used and which actorsbesides states have successively been accepted as legal subjects. Thisbrief presentation will provide a background for chapter 3, which willdeal with the modern theories of international law and outline my ownmethodology for the study.

1 Sir Robert Jennings and Sir Arthur Watts (eds.), Oppenheim’s International Law, I, 9thedn., London: Longman, 1996, p. 4 (hereafter Oppenheim’s International Law). It ishowever recognised in Oppenheim’s International Law that ‘states are not the onlysubjects of international law. International organisations and, to some extent, alsoindividuals may be subjects of rights conferred and duties imposed by internationallaw’, ibid.

53

2.2 The historical view of the subjectsof international law

The horizontal and positivist interstate model of international lawis closely connected to the nation-state system as it emerged afterthe Peace Treaty of Westphalia of 1648.2 The concept of sovereigntyhas deep historical roots, but was mainly developed as a doctrineafter Westphalia.3 The general model of international law as a systemof rules between sovereign states has basically kept its grip since then,even if alternative views have become more common as internationallaw and politics in fact involved more and more actors.

While legal personality and the related concepts have untilrecently not been examined with regard to non-governmental organ-isations, historical theories about the relationships between states,intergovernmental organisations and individuals can provide anunderstanding of the classical view on non-state actors in inter-national law. A discussion on this subject that was presented in oneof the early editions of Oppenheim’s International Law illustrates howlegal personality was looked upon between the two world wars, i.e.before the development of international human rights law:

The conception of International Persons is derived from the conception ofthe Law of Nations. As this law is the body of rules which the civilised Statesconsider legally binding in their intercourse, every State which belongs tothe civilised States, and is therefore a member of the Family of Nations, is anInternational Person. And since now the Family of Nations is on the way tobecoming an organised community under the name of the League of Nationswith distinctive international rights and duties of its own, the League ofNations is an International Person sui generis besides the several States. Butapart from the League of Nations, sovereign States exclusively areInternational Persons – i.e. subjects of International Law . . . It must be spe-cially mentioned that the character of a subject of the Law of Nations and ofan International Person can be attributed neither to monarchs, diplomatic

2 See, e.g., Richard Falk, Law in an Emerging Global Village: A Post-Westphalian Perspective, NewYork: Transnational Publishers, 1998, p. 4 and Christoph Schreuer, ‘The Waning of theSovereign State: Towards A New Paradigm for International Law?’, 4 EJIL (1993), p. 447(who, however, draws a more complex picture).

3 An elaborate historical description is presented by E.N. Van Kleffens in ‘Sovereignty inInternational Law’, 82 Recueil des Cours I (1953), pp. 13–83. See also Helmut Steinberger,‘Sovereignty’, EPIL, 4, Amsterdam: North-Holland, 2000, pp. 500–521; Oppenheim’sInternational Law, I, pp. 124–125; and Malcolm N. Shaw, International Law, 4th edn.,Cambridge University Press, 1997, pp. 22–23.


envoys, private individuals, nor churches, nor to chartered companies, nor toorganised wandering tribes.4

Oppenheim thus asserted that it could be concluded logically from thenature of international law that private actors could never acquireinternational legal personality. It should be noted that Oppenheimregarded the concept of international legal personality as ‘derived’from the concept of the ‘Law of Nations’; accordingly, only nations,i.e. states, could be international persons. As regards rights pertainingto the individual, Oppenheim was equally certain:

The assertion that, although individuals cannot be subjects of InternationalLaw, they can nevertheless acquire rights and duties from International Law,is untenable as a general proposition. International law cannot grant inter-national rights to individuals, for international rights and duties can onlyexist between States, or between the League of Nation and States.5

Although this was at the time the dominant view, there was alreadydiscussion on the subject.6 The same year, the question of whether itwas possible for individuals to hold rights under an international treatywas at issue in a case before the Permanent Court of InternationalJustice, the Danzig Railway Officials Case. The Court stated:

It may readily be admitted that, according to a well established principle ofinternational law, the Beamtenabkommen, being an international agreement,cannot, as such, create direct rights and obligations for private individuals.But it cannot be disputed that the very object of an international agreement,according to the intention of the contracting Parties, may be the adoption by theParties of some definite rules creating individual rights and obligations andenforceable by the national courts . . . The intention of the Parties, which is tobe ascertained from the contents of the Agreement, taking into considerationthe manner in which the Agreement has been applied, is decisive.7

The Court thereby clarified that there is no obstacle inherent in inter-national law to prevent states from conferring international rights on

4 Lassa Oppenheim, International Law: A Treatise, I, 4th edn., London: Longmans, Green &Co., 1928, pp. 133–134.

5 Oppenheim, International Law: A Treatise, p. 520. International treaties speaking aboutrights for individuals represented ‘nothing more than an inaccuracy of language’, inOppenheim’s view, p. 519.

6 Oppenheim, International Law: A Treatise, p. 134.7 ‘Advisory Opinion on the Jurisdiction of the Courts of Danzig’, (1928) PCIJ Series B No. 15,pp. 17–18. There are even older examples. The Treaty between five Central AmericanStates establishing the Central American Court of Justice included provisions forindividuals to bring cases directly before the Court, Shaw, International Law, p. 179.

H I STOR ICAL AND CONCEPTUAL BACKGROUND 55

individuals and making them legal subjects in that respect, if this is theintention of states.8

The eighth edition of Oppenheim’s International Law, publishedalmost thirty years later, was edited by Sir Hersch Lauterpacht. In thenew version of the text relating to the position of the individual ininternational law it was contended that states occasionally did conferinternational ‘rights stricto sensu’, i.e. on individuals ‘rights which theyacquire without the intervention of municipal legislation and whichthey can enforce in their own name before international tribunals’ onindividuals.9 On this basis, and based on the fact that international lawalso imposed international duties on the individual, Lauterpacht con-cluded that the quality of individuals as subjects of international lawwas ‘apparent’. In fact, Hersch Lauterpacht had advocated the positionthat individuals were subjects of international law at least as early as in1947–8, in other words soon after the Second World War, when he hadbeen associated with the preparations for the trials of German warcriminals.10 Lauterpacht held that the positivist view that only stateswere subjects of international lawwas ‘unable to stand the test of actualpractice’.11 He made this argument referring to, inter alia, the rules ofinternational law on the issue of piracy and to the rules on the ‘funda-mental rights of the individual’ which, according to English doctrine,were part of the law of the land.12 Commenting on the contemporarydoctrinal discussions on the issue of subjects of international law,Lauterpacht stated ‘The orthodox positivist doctrine has been explicitin the affirmation that only States are subjects of international law’, andthen in a footnote: ‘That traditional doctrine is now rejected by the greatmajority of those who have devoted special study to the matter – thoughit continues to linger in some repetitious statements in text-books.’13

8 The same position was held more recently in the case of LaGrand (Germany v. USA), 27June 2001, accessible online at the ICJ’s website, www.icj-cij.org/icjwww/idocket/igus/igusframe.htm, as of 4 November 2004. See also James Crawford, ‘The ILC’s Articles onResponsibility of States for InternationallyWrongful Acts: A Retrospect’, 96 AJIL (2002),pp. 887–888.

9 H. Lauterpacht (ed.),Oppenheim’s International Law, I, 8th edn., London: Longmans, Green &Co., 1955, pp. 638–639.

10 Elihu Lauterpacht (ed.), International Law, Being the Collected Papers of Hersch Lauterpacht, 2,The Law of Peace, Cambridge University Press, 1975, p. 487.

11 Ibid., p. 491. 12 Ibid., pp. 490–491.13 Ibid., p. 489. See also Hans Kelsen, Principles of International Law, 2nd edn., NewYork: Holt,

Rinehart & Winston, 1966 (1st edn. 1950), pp. 203 ff., where it was acknowledged thatindividuals were subjects of international obligations, while the existence ofinternational rights was held to depend on the possibility of enforcement.


As will be demonstrated below, Lauterpacht’s view that the status ofthe individual as a subject of international lawwas ‘apparent’ is far froma generally recognised view even today.14 It is fascinating how thereasoning on this subject has kept repeating itself over such a longtime, although the legal status of the individual has been successivelystrengthened.

One of the earlier attempts to launch the idea of an international legalorder inclusive of all kinds of actors was made by the American profes-sor Philip Jessup, who published his work ‘Transnational law’ in 1956.15

Jessup asserted that the term ‘international’ law was misleadingbecause it suggested that ‘one is concerned only with the relations ofone nation (or state) to other nations (states)’.16 With the expression‘transnational law’ Jessup wanted to conceptualise ‘the law applicableto the complex interrelated world community which may be describedas beginning with the individual and reaching on up to the so-called‘‘family of nations’’ or ‘‘society of states’’’.17 In other words, Jessupregarded what is now understood as private international law andinternational law as one and the same legal system, including ‘all lawwhich regulates actions or events that transcend national frontiers’.18

Transnational law could involve ‘individuals, corporations, states, organ-izations of states, or other groups’. Jessup specifically referred to the‘140 intergovernmental organizations and over 1,100 nongovernmentalorganizations commonly described as international’, that made onerealise ‘the almost infinite variety of transnational situations that mayarise’.19 The term ‘transnational law’ has lived on in modern legaltheory, as will be described in chapter 3.20

14 See section 3.2.15 Jessup himself refers to Scelle’s monistic conception of law, according to which indivi-

duals were the only subjects of law. Philip C. Jessup, Transnational Law, New Haven:Yale University Press, 1956, p. 3, referring to Scelle, Precis de droit de gens, Paris, 1932. In1948, Jessup had published A Modern Law of Nations, which also took up the issues ofsubjects of international law and the position of the individual. He suggested thatinternational law should be defined as ‘law applicable to states in their mutual relationsand to individuals in their relations with states’, but still regarded as an ‘inescapablefact’ that the fundamental changes of law could take place only through state action.Philip C. Jessup, A Modern Law of Nations, New York: Macmillan, 1948, pp. 16–17.

16 Jessup, Transnational Law, p. 1. 17 Ibid. 18 Ibid., p. 2. 19 Ibid., p. 4.20 See section 3.2. See alsoHarald Konjung Koh, Transnational Legal Process, The 1994Roscoe

Pound Lecture, Nebraska Law Review, 1996, pp. 181–207; Anne-Marie Slaughter et al.,‘International Law and International Relations: A New Generation of InterdisciplinaryScholarship’, 92 AJIL (1998), pp. 337–338.


2.3 Intergovernmental organisations as subjectsof international law

The issue of international legal personality has been considered mainlyin relation to intergovernmental organisations in international legaldoctrine and case-law. This topic has been discussed thoroughly, andI shall not describe all its aspects. My intention is instead to examinehow international legal personality was once extended to include IGOsin order to consider whether it is possible to make analogies with theinternational legal position of NGOs today.

The early IGOs did not have any legal personality on the internationalplane; instead, one member state acted on behalf of all the memberstates.21 Although the United Nations was not the first IGO to be recog-nised as an international legal person, the advisory opinion delivered bythe International Court of Justice (ICJ) in the case of Reparations for InjuriesSuffered in the Service of the United Nationswas an important development ofthe notion of international legal personality, because it partially cut IGOsloose from their constituent instruments.22 The main question that wasput to the Court was whether the United Nations, as an organisation, had‘the capacity to bring an international claim’ against a governmentregarding injuries that the organisation alleged had been caused by thatstate. One of the Court’s preliminary observations on the question sub-mitted to it concerned what was meant by the formula ‘capacity to bringan international claim’. The Court found that this was tantamount toasking whether the organisation had international personality.23 Afterhaving noted that this question was not settled explicitly in the Charter,the Court deliberated on the question whether the UN members hadnevertheless intended to give the organisation legal personality. It stated:

21 Henry G. Schermers and Niels M. Blokker, International Institutional Law: Unity withinDiversity, 3rd rev. edn., Dordrecht: Martinus Nijhoff, 1999, p. 977.

22 In the 7th edition of Oppenheim’s International Law from 1948, it was stated that ‘Thequestion of the legal nature of the Leaguewas amatter of considerable controversy. Thepredominant opinionwas that the League,while being a juristic person sui generis, was asubject of International Law and an International Person side by side with the severalStates.’ Lassa Oppenheim, International Law: A Treatise, I, 7th edn., London: Longmans,Green & Co., 1948, pp. 344–345. See also Hermann Mosler, The International Society as aLegal Community, Alphen aan den Rijn: Sijthoff & Noordhoff, 1980, p. 33, on theEuropean Commission of the Danube.

23 Reparations for Injuries Suffered in the Service of the United Nations, ICJ Reports, 1949, p. 178.


The subjects of law in any legal system are not necessarily identical in theirnature or in the extent of their rights and their nature depends upon the needsof the community.24

The Court observed that, in order for the United Nations to achieve itsends, international legal personality was indispensable. After examin-ing the functions given to the organisation in the Charter, as well as thepractice of the United Nations as concerned, inter alia, the conclusion oftreaties, the Court stated that:

the Organization was intended to exercise and enjoy, and is in fact exercisingand enjoying functions and rights which can only be explained on the basis ofthe possession of a large measure of international personality and the capacityto operate upon an international plane . . . Accordingly, the Court has come tothe conclusion that the Organization is an international person. That is not thesame thing as saying that it is a State, which it certainly is not, or that its legalpersonality and rights and duties are the same as those of a State . . . What itdoes mean is that it is a subject of international law and capable of possessinginternational rights and duties, and that it has capacity to maintain its rights bybringing international claims.25

The next question was whether the international rights of the UnitedNations included the kind of international claim in question:

Whereas a State possesses the totality of international rights and duties recog-nized by international law, the rights and duties of an entity such as theOrganization must depend upon its purposes and functions as specified orimplied in its constituent document and developed in practice.26

The Court concluded that, since the functions of the United Nationswere of such a character that they could not be effectively fulfilledif they involved concurrent action by all its member states, thesestates had indeed endowed the United Nations with the capacity tobring international claims when necessary for the discharge of itsfunctions.27 Another important clarification was made with respect

24 Ibid. 25 Ibid., p. 179. 26 Ibid., p. 180.27 The Court explained that the competence to bring an international claim is ‘the

capacity to resort to the customary methods recognized by international law for theestablishment, the presentation and the settlement of claims. Among these methodsmay be mentioned protest, request for an inquiry, negotiation and request forsubmission to an arbitral tribunal.’ The Court continued: ‘When the Organizationbrings a claim against one of its Members, this claim will be presented in the samemanner, and regulated by the same procedure.’ Ibid., pp. 177–178.


to whether the United Nations could bring a claim for injuries againsta state which was not a member of the organisation. On this point,the ICJ found that the fifty member states of that time represented‘the vast majority of the members of the international community’,and so they had the power of bringing into being an entity withobjective international legal personality, i.e. legal personality valid inrelation to, or opposable to, all other subjects of international law.28

For comparison, it can be mentioned that the legal personality ofsuch sui generis entities as the Order of Malta has been regarded asqualified, i.e. valid only in relation to the states that consent to it.29

The advisory opinion in the Reparation for Injuries case laid down afoundation as regards what is understood by international legal per-sonality and how it is created that is still generally accepted today. Forthe purpose of the present study, there are five key points of theCourt’s opinion: (1) The subjects of law can be different and theirnature depends on the need of the community; (2) while states possessthe totality of international rights and duties recognised by inter-national law, other subjects of international law may have differentcombinations of rights, duties and capacities; (3) if an entity hasthe capacity to bring an international claim, this means that it hasinternational legal personality; (4) capacities need not be expresslyconferred on an IGO, but can be inferred from functional necessityand practice, and (5) a vast majority of states can create an IGO thatpossesses international objective legal personality, opposable alsoto states that have not consented to this through membership orotherwise.

The International Law Commission (ILC) has considered the issue ofthe legal personality of IGOs as part of its work on the relations betweenstates and IGOs, which was placed on its agenda by the GeneralAssembly in 1958. In 1992, however, the General Assembly decided

28 Ibid., p. 185. The expression ‘objective legal personality’ is sometimes also understoodas something different, namely the idea that IGOs have legal personality in internationallaw independently of the will of their member states, provided that they have at leastone organ which has a will distinct from that of the member states. Schermers andBlokker, International Institutional Law, pp. 978–979, Finn Seyersted, ‘InternationalPersonality of Intergovernmental Organizations: Do their Capacities Really Dependupon the Conventions Establishing Them?’, 34 Nordisk Tidsskrift for International Ret og JusGentium (1964), pp. 1–112.

29 Shaw, International Law, p. 191, James Crawford (who uses the terms ‘objective’ and‘special’ legal personality), The Creation of States in International Law, Oxford: ClarendonPress, 1979, p. 26. See also section 2.4.


that the work should not be pursued.30 The Special Rapporteur, suggest-ing that IGOs, individuals as well as some other bodies were indeed newsubjects of international law, stated that an IGO must enjoy a ‘func-tional independence’ vis-a-vis the states which establish it.31 He sum-marised the functional powers of IGOs in the following way:

Although international organizations can be given only functions and powerswhich are related to their purposes, theymust be given all the powers necessaryfor the realization of those purposes. This goes beyond the limits which thistheory seeks to supplement.32

The draft articles submitted by the Special Rapporteur suggested thatIGOs should ‘enjoy legal personality under international law and underthe internal law of their member States’, that they should have thecapacity to contract, to acquire and dispose of property and to institutelegal proceedings. It was further suggested that the capacity of an IGO toconclude treaties should be governed by the ‘relevant rules of thatorganization and by international law’.33 Some comments were madewithin the Commission on the wording of the draft articles, but ingeneral there was support for the Special Rapporteur’s report.34

Schermers and Blokker assert that the theory of implied powers, asexpressed in the Reparations for Injuries opinion, is the dominant theoryon the legal personality of IGOs. The theory of attributed powers and thetheory of objective legal personality are alternative views, the latteradvocated mainly by Seyersted.35 Peter Bekker adheres to a ‘pragmaticschool of thought’ on the international personality of IGOs, in supportof Seyersted’s theory.36 Bekker takes ‘the concrete exercise of, or at leastthe potential ability to exercise, certain rights and the fulfilment of

30 A/RES/1289 (XIII), Relations between States and Intergovernmental Organizations, 5 December1958; A/RES/47/33, Report of the International Law Commission, 25 November 1992.For an extensive description of the Commission’s work on the subject, see Peter H. F.Bekker, The Legal Position of Intergovernmental Organizations, Dordrecht: Martinus Nijhoff,1994, pp. 9 ff.

31 Special Rapporteur Dıaz Gonzales, YILC 1985 vol. II, Pt. One, p. 107.32 Ibid., p. 110. 33 Ibid., p. 157. 34 Ibid., pp. 86–87.35 Schermers and Blokker, International Institutional Law, pp. 978–979. The theory of

attributed powers is also called the theory of delegated powers, see YILC 1985 vol. II,Pt. One, p. 109.

36 Bekker, The Legal Position of Intergovernmental Organizations, pp. 55–56. Seyersted’s maintheory in relation to IGOs is that its international personality is not established by theprovisions of its constitution or the intention of its framers, but by the objective fact ofits existence. Seyersted, International Personality of Intergovernmental Organizations, p. 61(emphasis in original).


certain obligations as the basis for concluding that an internationalorganization has an international personality distinct from that of itsmember states’.37 Bekker summarises his approach as follows:

An international organization shall be entitled to (nomore than) what is strictlynecessary for the exercise of its functions in the fulfilment of its purpose.38

The views expressed on the issue of the international legal personalityof IGOs in the Reparations for Injuries case, in the reports of the ILC and inthe writings by Schermers and Blokker, Bekker and Seyersted are –although different in some respects – to a large extent shared. Thequestion is to what degree any conclusions can be drawn from thesetheories for the purpose of the examination and discussion on the legalstatus of NGOs. A few points can be made in this regard. First, a basicobservation and starting-point for analysis is that all IGOs have beenestablished by states as opposed to NGOs, which are by definitionestablished by private initiative. As the existence and position of allIGOs can be regarded as originally derived from state intent, there isconsiderablymore room for a dynamic development of their legal statusthan in the case of NGOs, at least from the point of view of the tradi-tional theory of international law. It is not easy to argue for a theory ofimplied powers in relation to NGOs, especially not if implied powers areseen as a consequence of the objective of the organisation. It couldpossibly be held that the conferral of certain capacities or status – forinstance, in relation to co-operation with an IGO – would be meaning-less without the conferral of other aspects of legal status, and thatthe latter could therefore be implied. It can be mentioned as an illustra-tion that some IGOs, such as the European Union and the United NationsHighCommissioner for Refugees (UNHCR) contract NGOs for operationalwork, as will be described in chapter 9. Some components of legal statusmay be necessary for the NGO to be able to carry out such work, suchas the capacity to conclude agreements with other IGOs or states.

Secondly, neither the ICJ in the Reparation for Injuries case, nor thewriters referred to above, have determined the legal position of IGOson the basis of an a priori notion of international legal personality or theexplicit attribution of legal personality in the constituent instrument.Rather, the status of a particular IGO has been evaluated on the basis ofits actual existence and its functions, purposes and practices. Such anapproach could be applied also to NGOs insofar as rights, duties and

37 Bekker, The Legal Position of Intergovernmental Organizations, pp. 54–55. 38 Ibid., p. 5.


capacities have actually been conferred on an organisation by treaty orotherwise. If a corresponding connection to original state intent is to bemaintained, however, the legal personality of an NGO could neverextend outside the area of the rights, duties and capacities actuallyenjoyed by it.39

Thirdly, and finally, it is of interest to note that the ICJ stated that amajority of states could confer objective personality on an IGO, i.e.personality that is opposable also to other states. Considering the statusof the ICRC and the Order of Malta, which will be described below, itseems possible that some NGOs may also acquire objective personality.

2.4 The ‘sui generis’ subjects of international law

Introduction

As is generally known, there are some entitieswhichhave been recognisedby states and IGOs as legal persons, although they are not states, are notcreated by states and are, at least currently, non-territorial. The existenceof such ‘sui generis’ subjects of international law illustrates the fact that ifstates accept a non-state entity as a new international legal person thereare no obstacles inherent in international law itself to prevent such adevelopment.40 Furthermore, it is interesting that this personality is notderived from a direct intent on the part of states to create a new subject ofinternational law, as in the case of IGOs. I shall briefly examine two ofthese private subjects of international law – the Order of Malta and theICRC – in order to describewhat acts they performunder international lawand what is the general attitude of the international community towardsthem. The Order of Malta and the ICRC have been chosen as examples asthey both, at least roughly, fall within the definition of ‘non-governmentalorganisation’ used in this study.41 They therefore demonstrate a potentialthat, at least theoretically, all NGOs have.

39 But see the decision of the Trial Chamber of the ICTY regarding the ICRC, described insection 2.4.

40 The expression ‘sui generis’ seems to indicate that private subjects of international lawwill always be exceptional. I have used notation marks in order to indicate an attitudewhich is more neutral to possible developments. It can be observed that LassaOppenheim called the League of Nations an international person sui generis in hisstatement cited above, see International law: A Treatise, I, 4th edn., 1928, pp. 133–134, andsection 2.2.

41 See, however, section 2.4 on the characterisation of the ICRC.


Other non-state entities, such as theHoly See and insurgent groups, areof some interest for the sake of comparison, in spite of their territorialconnections. It is generally recognised that the Holy See, as distinct fromthe Vatican City, is an international legal person.42 It is a party to inter-national agreements and maintains diplomatic relations with over 170states, as well as with the European Union and the Order of Malta.43 TheHoly See also concludes concordats on behalf of the catholic church, i.e.bilateral agreements between the Holy See and a state, whereby the HolySee as the head of the Catholic Church regulates the relations of thechurch in a given state with the government of that state.44 The Holy See,however, distinguishes itself fromNGOs as defined in this study throughits position as head of the Vatican.45 Belligerent and insurgent groups, fortheir part, may acquire some kind of position under international law intimes of conflict by entering into agreements with states or by beingbound by international humanitarian law.46

The Order of Malta

The SovereignMilitary and Hospitaller Order of Saint John of Jerusalem,of Rhodes and of Malta, in short the Order of Malta, was founded as amonastic community in 1099 and became an independent organisationto give religious and hospital care to Christian pilgrims and crusaders inJerusalem around 1100.47 Although the Order of Malta as a religious

42 Oppenheim’s International Law, pp. 326–328; Shaw, International Law, p. 172; D. J. Harris,Cases and Materials on International Law, 5th edn., London: Sweet & Maxwell, 1998, p. 138;Crawford, The Creation of States in International Law, pp. 156–160; Hermann Mosler,‘Subjects of International Law’, EPIL, 4, Amsterdam: North-Holland, 2000, pp. 719–720.See, however, Ian Brownlie, who states that the Holy See can have international legalpersonality only in relation to states which are prepared to enter into relations withsuch institutions on the international plane, Principles of Public International Law, 5th edn.,Oxford University Press, 1998, p. 64.

43 Official website of the Holy See accessible online at http://www.vatican.va (section‘Bilateral and Multilateral Relations of the Holy See’), as of 28 October 2004.

44 Chris N. Okeke, Controversial Subjects of Contemporary International Law: An Examination ofthe New Entities of International Law and their Treaty-Making Capacity, Rotterdam UniversityPress, 1974, p. 67.

45 Italy recognised the international personality of the Holy See and its exclusive sover-eignty and jurisdiction over the city of the Vatican through the Lateran Treaty of 1929,Oppenheim’s International Law, I, pp. 326–328. Okeke, Controversial Subjects, p. 68.

46 See, e.g., Shaw, International Law, p. 173 and Brownlie, Principles of Public International Law,p. 63. See also section 4.4 and chapter 8.

47 Yves Beigbeder, The Role and Status of International Humanitarian Volunteers andOrganizations: The Right and Duty to Humanitarian Assistance, Dordrecht: Martinus Nijhoff,1991, p. 212. The official name of the Order is given in Article 1, para. 1, of its


order has connections with the Holy See, which approves the appoint-ment of the Grand Master, it is independent of it as a sovereign Order ofKnighthood.48

The Order ofMalta takes its name from the island ofMalta, whichwasgiven to it in 1530 by Emperor Charles V. It ruledMalta until 1798, whenthe island was taken by Napoleon. Before that, the Order had beensovereign on Rhodes.49 In 1834, the Order established its headquartersas a humanitarian organisation in Rome, where it is still located today.50

The Order has around 12,000 Knights and Dames and more than1 million associate members, and its humanitarian work includes theoperation of around 200 hospitals, dispensaries and nursery schools.51

It is interesting to note from an international legal point of view thatthe Order of Malta, although being a private entity currently withoutterritory, is generally regarded as a subject of international law.52 Itsdiplomatic relations include embassies in nearly sixty countries andlegations in five, and it issues diplomatic passports.53

The sovereignty and independence of the Order have been discussedin several judgments from Italian national courts. In a case from1935–7,the Italian Court of Cassation stated:

With the recognition of the Church and of the Byzantine Empire, the Orderestablished, after the conquest of territory of its own, its independence and

Constitutional Charter and Code, promulgated on 27 June 1961, published in BolletinoUfficiale, Rome, 12 January 1998.

48 Constitutional Charter and Code of the Order of Malta, Article 4, para. 1 and Article 13,para. 13 and Beigbeder, The Role and Status of International Humanitarian Volunteers andOrganizations, p. 212.

49 Constitutional Charter and Code of the Order of Malta, Article 1, para. 1.50 Harris, Cases and Materials, pp. 142, 143.51 Beigbeder, The Role and Status of International Humanitarian Volunteers and Organizations,

pp. 212, 213; Shaw, International Law, p. 171; and Constitutional Charter and Code of theOrder of Malta, Article 3, para. 1.

52 See the annex to the resolutionmentioned below, A/48/957, Request for the Inclusion of anAdditional Item in the Agenda of the Forty-Eighth Session, 29 June 1994, according to whichsixty-four member states of the United Nations have recognised the Order’s ‘fullsovereignty as an equal member of the international community’, and the cases fromthe Italian courts mentioned below. See also Oppenheim’s International Law, p. 329 (fn. 7,implicitly); Shaw, International Law, p. 171; Harris, Cases and Materials, pp. 142, 143;Crawford, The Creation of States in International Law, pp. 26, 155, 160; and Beigbeder, TheRole and Status of International Humanitarian Volunteers and Organizations, p. 212. The latterdoes not explicitly mention the Order’s international legal personality, but describes itas ‘internationally recognized as sovereign and independent of any civil power’.Brownlie states that the international legal capacities of the Order are ‘limited’,Principles of Public International Law, p. 65.

53 H. J. A. Sire, The Knights of Malta, New Haven: Yale University Press, 1994, pp. 271, 285.


sovereignty . . . The Grand Master was recognised as Sovereign Head of Rhodeswith all the attributes of such a position, which included . . . the right of activeand passive legation together with the right of negotiating directly with otherStates and ofmaking conventions and treaties . . . Such attributes of sovereigntyand independence have not ceased, in the case of the Order, at the present day –at least not from the formal point of view in its relations with the Italian State.Nor has its personality in international law come to an end notwithstanding thefact that as a result of the British occupation ofMalta such personality cannot beassociated with the possession of territory.54

A case from1974 originated in an action brought by an employee of one oftheOrder’s hospitals against the Association of Italian Knights of theOrderofMalta (ACISMOM).55ACISMOM,which is oneof thenational associationsof the Order of Malta, claimed that the Court lacked jurisdiction sinceACISMOMwas a subject of international law recognised by Italy. The Courtagain confirmed that the Order of Malta was a subject of international lawand granted it jurisdictional immunity, stating that the Order ‘constitutesa sovereign international subject and, though deprived of territory, isequal in all respects to a foreign State with which Italy has normal diplo-matic relations’. As regards the position of ACISMOM in relation to theOrder of Malta, the Court observed quite interestingly that:

The term ‘national’ therefore means only that the individual association isintended to operate within the nation for which it was set up, and not that itbecomes a corporate body under the legal system of that nation. The associa-tions are public bodies under the legal system of the Maltese Order and they areentitled to the same legal treatment due to the Sovereign Military Order ofHospitallers of Malta.56

54 Nanni v. Pace and the Sovereign Order of Malta, 1935–37 8 A.D.2. Italian Court of Cassation,in Harris, Cases and Materials, p. 143.

55 Association of Italian Knights of the Order of Malta v. Piccoli, Italian Court of Cassation, 6 June1974, in 65 ILR (1984), pp. 308–312.

56 Association of Italian Knights of the Order of Malta v. Piccoli, Italian Court of Cassation, 6 June1974, in 65 ILR (1984), p. 310. A case which is interesting as a comparison is Bacchelli v.Comune di Bologna, which concerned the Order of Santa Maria Gloriosa. In this case, theCourt of Cassation discussed the indications of international legal personality and theimportance of the attitude of the international community in this regard. The Courtcame to the conclusion that, for determining the status of the Order of Santa MariaGloriosa, the Order of Malta could not be relied upon as a precedent since it was aunique exception which was to be explained by reference to its historical backgroundand ‘the (anomalous) survival in the case of the Order of the requisites of independenceor of sovereignty’. Bacchelli v. Comune di Bologna, Italian Court of Cassation, 20 February1978, in 77 ILR (1988), pp. 621–626. See also section 2.5.


The Court also mentioned that Italian law (in particular Law No. 23 of1938 regarding personnel in the service of the Association operating inItaly) has expressly recognised that the latter has the nature of a publicinternational body.57

Although the Order of Malta as a humanitarian organisation does nothave the mandate entrusted to the ICRC in international humanitarianlaw by the Geneva Conventions of 1949,58 an earlier document (theFinal Act of the 1929 Diplomatic Conference in Geneva) contained thefollowing recommendation with regard to the Order:

In view of a request by the Sovereign and Military Order of the Hospitallers ofSt. John of Jerusalem, called the Order of Malta, the Conference considers thatthe provisions laid down by the Geneva Convention governing the position of AidSocieties with armies in the field are applicable to the national organizations ofthis Order.59

The Order is one of the few non-state entities which have been grantedobserver status at the UN General Assembly.60 The documentation onthe granting of observer status provides some interesting informationabout the Order’s status and the general attitude of states towards it. InJune 1994, twenty-eight states proposed the inclusion on the agenda ofthe UNGeneral Assembly of an additional item regarding observer statusfor the Order of Malta in the Assembly.61 A fairly thorough account ofthe role and status of the Order was given in an annex to the resolution,which also expressed the official position of a large group of statestowards the Order. For instance, it was stated in the annex that sixty-four member states of the United Nations had recognised the Order’s‘full sovereignty as an equal member of the international commu-nity’.62 It was also said that the members of the Order were ‘loyal

57 Association of Italian Knights of the Order of Malta v. Piccoli, Italian Court of Cassation, 6 June1974, in 65 ILR (1984), p. 310.

58 However, some provisions of the Geneva Conventions of 1949 and the additionalprotocols extend protection to humanitarian organisations in general, see section 4.4.

59 Final Act of the Diplomatic Conference, Geneva, 27 July 1929, recommendation II. TheDiplomatic Conference of Geneva of 1929 was convened by the Swiss Federal Councilfor the purpose of revising the Geneva Convention for the Amelioration of theCondition of the Wounded and Sick in Armies in the Field of 1906 and adopting a newconvention in relation to the treatment of prisoners of war.

60 A/RES/48/265, Observer Status for the Sovereign Military Order of Malta in the General Assembly,24 August 1994.

61 A/48/957, Request for the Inclusion of an Additional Item in the Agenda of the Forty-Eighth Session,29 June 1994, and A/48/957/Add. 1, 22 July 1994.

62 Ibid., annex, para 1.


citizens of their respective countries, a condition that is not com-promised by their membership in the Order, which is a supplemental,supranational honour’.63

Other information provided in the annex includes the fact that, inaddition to the diplomatic or official representatives present in manycountries, the Grand Magistry of the Order is represented by accrediteddelegations to numerous international agencies, including the UNoffices at Geneva and Vienna, the Commission of the European Unionand the CoE.64 The Order of Malta was granted observer status at the UNGeneral Assembly in August 1994 in consideration of ‘the long-standingdedication of the SovereignMilitary Order ofMalta in providing human-itarian assistance, and its special role in international humanitarianrelations’.65 The resolution was adopted without vote after the presen-tation of a draft by seventy-two states.66

In sum, the Order of Malta is an entity with a very special history ofboth territorial sovereignty, which the Order was for a time able todefend by force, and connections to the Holy See. The Italian Court ofCassation has underlined this ‘sui generis’ character of the Order, statingthat it cannot be regarded as a precedent for other non-state entities. Asis clear from chapter 1, my definition of ‘non-governmental organisa-tion’ embraces the Order of Malta. The Order therefore provides aninteresting demonstration of the flexible character of internationallaw, which can clearly accommodate particular NGOs as internationallegal subjects if this is accepted by the international community. TheOrder of Malta also illustrates what attributes of international legalpersonality can potentially be held by non-state entities.

The International Committee of the Red Cross

The ICRC is an independent part of the International Red Cross and RedCrescent Movement, which also encompasses the InternationalFederation of Red Cross and Red Crescent Societies and the differentNational Societies. Each body of the movement is independent andexercises no authority over the others. According to Article 1 of its

63 Ibid., para. 2. 64 Ibid., para. 8.65 A/RES/48/265, Observer Status for the Sovereign Military Order of Malta in the General Assembly,

30 August 1994, Preamble, para. 2.66 A/48/L.62, 22 August 1994 and A/48/L.62/Add. 1, 25 August 1994. Voting information

given at the UN website accessible online at http://www.un.org/Depts/dhl/res/resa48.htm, ‘Resolutions adopted by the General Assembly at its 48th session’, accessedon 25 October 2004.


Statute, the ICRC is ‘an independent humanitarian organization havinga status of its own’.67 It is a Swiss association created under the SwissCivil Code and enjoys Swiss legal personality. The twenty-five membersof the ICRC shall be Swiss citizens.68

Within the context of the present study, the most interesting featureof the ICRC is its special status under international humanitarian law.69

This status has a long history. As a result of his experiences from theBattle of Solferino, Henry Dunant wrote A Memory of Solferino (1862) andmade several proposals in order to alleviate the suffering of the victimsof armed conflicts. One proposal was to declare army medical servicesneutral and to give them a distinctive emblem. Another was to form, inpeacetime, voluntary relief societies to act as auxiliaries to army med-ical services in times of war.70 The ICRC, which was initially called theInternational Committee to Aid the Military Wounded, met for the firsttime in 1863 to examine the proposals.71 The same year, the firstvoluntary aid societies were set up.

Although the influence of the ICRC on the development of inter-national humanitarian law has only an indirect connection to theissue of its legal status, a brief description is of interest at this point,as the Committee to a great extent participated in the making of therules which gave it its special status. In 1864, when the InternationalCommittee to Aid the MilitaryWounded had existed for only a year, the

67 Statutes of the International Committee of the Red Cross, as adopted on 24 June 1998,International Review of the Red Cross No. 324, pp. 537–543.

68 Statutes of the International Committee of the Red Cross, Articles 2, 7(1).69 For more general information about the Red Cross and Red Crescent Movement, see,

e.g., Beigbeder, The Role and Status of International Humanitarian Volunteers andOrganizations. pp. 61–79, 139–177; Christophe Lanord, ‘The Legal Status of National RedCross and Red Crescent Societies’, International Review of the Red Cross, No. 840 (2000),pp. 1053–1077; Peter Macalister-Smith, International Humanitarian Assistance: DisasterRelief in International Law and Organization, Dordrecht: Martinus Nijhoff, 1985, pp. 22–34,75–92; LouisMaresca and StuartMaslen (eds.), The Banning of Anti-Personnel Landmines: TheLegal Contribution of the International Committee of the Red Cross 1955–1999, CambridgeUniversity Press, 2000; Peter Nobel, ‘The Red Cross–Red Crescent Movement: A Modelfor Non-State Participation?’, in Theo Van Boven et al. (eds.), The Legitimacy of the UnitedNations: Towards an Enhanced Legal Status of Non-State Actors, Netherlands Institute ofHuman Rights, SIM Special, 19, Utrecht, 1997, pp. 77–86; and Yves Sandoz, TheInternational Committee of the Red Cross as Guardian of International Humanitarian Law,Geneva: International Committee of the Red Cross, 1998.

70 Sandoz, The International Committee of the Red Cross, p. 4.71 Finnemore, in John Boli and George M. Thomas (eds.), Constructing World Culture:

International Nongovernmental Organizations since 1875, Stanford University Press 1999,p. 155.


Committee convened an international conference with delegates fromsixteen states to discuss a draft convention it had prepared. During thisConference, the Geneva Convention for the Amelioration of theCondition of the Wounded in Armies in the Field was adopted.72 Bythe end of the year, the convention had been ratified by ten states.73 As aresult of the initiatives and work of the Committee, the convention wasrevised and other conventions adopted over the years. Just as for theseearlier conventions, the ICRC was responsible for the initiative that ledto the conclusion of the four Geneva Conventions of 1949, as well as thetwo additional protocols of 1977.74 Moreover, the texts of both theconventions and the additional protocols were drafted by the ICRCafter a process of consultation with the state parties to the GenevaConventions and NGOs.75 During the break-up of the formerYugoslavia, the ICRC (because of the mixed international–internalnature of the conflict) presented an extract of the most basic norms ofthe Geneva Conventions to the belligerent parties, who adopted theagreement.76 The ICRC also played a key role in the international effortsto ban antipersonnel landmines, leading to the signing of the 1997Convention on the Prohibition of the Use, Stockpiling, Production andTransfer of Anti-Personnel Mines and on their Destruction.77

The ICRC has a unique mandate in international humanitarian lawdirectly formulated in the Geneva Conventions.78 For instance, com-mon Article 3 to the Geneva Conventions provides that ‘An impartialhumanitarian body, such as the International Committee of the RedCross, may offer its services to the Parties of the conflict.’ The mostremarkable provision of the Conventions in this regard is perhapsArticle 10 of Geneva Conventions I–III, according to which the ICRCor another humanitarian organisation can assume the powers of a

72 Finnemore, in Boli and Thomas, Constructing World Culture, p. 159.73 ICRC website at http://www.icrc.org/eng/history, ‘Founding and early years of the

International Committee of the Red Cross (1863–1914)’, as of 10 May 2001.74 Claude Pilloud et al., Commentary on the Additional Protocols of 8 June 1977 to the Geneva

Conventions of 12 August 1949, International Committee of the Red Cross, Dordrecht:Martinus Nijhoff, 1987, pp. xxx ff.

75 Ibid., p. xxxi; Maresca and Maslen, The Banning of Anti-Personnel Landmines, p. 1.76 Jean-Francois Berger, The Humanitarian Diplomacy of the ICRC and the Conflict in Croatia

(1991–1992), Geneva: International Committee of the Red Cross, 1995, pp. 25–29; OveBring, Folkratt f or totalf orsvaret: En handbok, Stockholm: Norstedts Juridik, 1994, p. 224.

77 For a thorough account of this work, see Maresca and Maslen, The Banning of Anti-Personnel Landmines.

78 See also section 4.4.


protecting power including, inter alia, the right to visit prisoners of war(Article 126 of Geneva Convention III) and to monitor compliance withthe rules of Geneva Convention IV relating to the protection of civilianpersons (Articles 55 and 61).79

The Statutes of the ICRC have, interestingly enough, been adopted byboth the components of the Red Cross and Red Crescent Movement andby the state parties to the Geneva Conventions, i.e. almost all the statesof the world.80 The statutes establish, inter alia, the legal status, head-quarters and role of the ICRC and its relations with other parts of themovement.81 In Article 6, the ICRC’s relations outside the movementare outlined: ‘The ICRC shall maintain relations with governmentauthorities and any national or international institution whose assis-tance it considers useful.’

Maintaining relations with governments is thus part of the organisa-tion’s tasks under the statutes. The four-yearly InternationalConference of the Red Cross and Red Crescent brings together delega-tions both from the Red Cross and Red Crescent institutions (theInternational Committee of the Red Cross, the InternationalFederation of Red Cross and Red Crescent Societies and the NationalSocieties) and from states parties to the Geneva Conventions. At thesame time, it should be noted that the membership of the Committee iscomposed solely of individual Swiss citizens.

The ICRC is generally recognised as possessing international legalpersonality, a fact that is related to its special status under internationalhumanitarian law.82 In this context, it should be observed that the ICRC

79 My point, as is stated elsewhere, is to demonstrate that the international legal systemcan accommodate and integrate non-state actors. It is therefore interesting to note thatBeigbeder, in The Role and Status of International Humanitarian Volunteers and Organizations(pp. 79–80) differentiates the ICRC from what he calls ‘the ‘‘real’’ NGOs’. Beigbedernotes that: ‘We have seen that the ICRC, although legally established as a NGO, has amandate and responsibilities in relationwith governments, in particularwith regard tothe formulation and monitoring of international humanitarian law, which distin-guishes it from the ‘‘real’’ (non-Red Cross) NGOs.’ The consequence of Beigbeder’sargument seems to be that NGOs that are endowed with a specific role directly underinternational law cease to be NGOs – or, in other words, that international law is bydefinition a system which can involve only states and IGOs.

80 Sandoz, The International Committee of the Red Cross, p. 4.81 Articles 2–5 of the Statutes of the International Committee of the Red Cross, as adopted

by the Assembly of the ICRC on 24 June 1998, International Review of the Red Cross, No. 324(1998), pp. 537–543.

82 See, e.g., Article 1 of the Agreement between the International Committee of the RedCross and the Swiss Federal Council to determine the legal status of the Committee in


does not consider itself to be an NGO in the ordinary sense of the term,mainly because of its special status, but also due to the fact that theCommittee – although being an independent body – is part of theInternational Red Cross and Red Crescent Movement, in which statesparticipate to determine the ICRC’s statutory authority to offer servicesor otherwise intervene in armed conflict.83 It was alsomentioned abovethat the Statutes of the ICRC have been adopted not only by the organi-sation itself, but also by the states parties to the Geneva Conventions.

An interesting aspect of the special status of the ICRC is the head-quarters agreements that it has concluded with seventy-four states.84

The purpose of these agreements, which will be more closely examinedin section 9.2, is to facilitate the independent action of ICRC delegatesand the ICRC itself. The Agreement concluded between the ICRC andthe Swiss Federal Council to determine the legal status of the ICRC inSwitzerland, explicitly says that: ‘The Federal Council recognizes theinternational legal personality and the legal capacity in Switzerland ofthe International Committee of the Red Cross.’ The ICRC is also grantedinviolability of premises and archives as well as immunity from legalprocess and execution, etc.85 ICRC delegates onmission are entitled to aSwiss diplomatic passport.86

In an interesting decision delivered by the International CriminalTribunal for the Former Yugoslavia (ICTY), the Trial Chamber estab-lished that the ICRC has a position not only under the GenevaConventions, but also under customary international law.87 The deci-sion followed a motion filed by the prosecution seeking a ruling from

Switzerland, International Review of the Red Cross, No. 293 (1993), pp. 152–160;International Tribunal for the Former Yugoslavia, Trial Chamber, Prosecutor v. Simicet al., Decision on the prosecution motion under rule 73 for a ruling concerning thetestimony of a witness, 27 July 1999, paras. 35 and 46 and n. 9; ICRC Annual Report 2000,Geneva: ICRC, 2001, p. 220; Schermers and Blokker, International Institutional Law, p. 33;and Shaw, International Law, p. 192.

83 Letter from the ICRC legal division, 22 June 2001, on file with the author. See alsoNobel, The Red Cross–Red Crescent Movement, pp. 77, 80–81.

84 ICRC Annual Report 2003, p. 21.85 Articles 1, 3, 4, 5 of the Agreement between the International Committee of the Red

Cross and the Swiss Federal Council to determine the legal status of the Committee inSwitzerland, International Review of the Red Cross, No. 293 (1993), pp. 152–160.

86 Beigbeder, The Role and Status of International Humanitarian Volunteers and Organizations,p. 67.

87 International Tribunal for the Former Yugoslavia, Trial Chamber, Prosecutor v. Simicet al., Decision on the prosecution motion under rule 73 for a ruling concerning thetestimony of a witness, 27 July 1999, and JL/P.I.S./439-E, Press release, Trial Chamber IIIRules that ICRC Need not Testify before the Tribunal, The Hague, 8 October 1999.


the Trial Chamber as to whether a former ICRC employee could becalled to give evidence of facts that had come to his knowledge by virtueof his employment as an interpreter. The Chamber noted the principlesderived from the mandate entrusted to the ICRC by international lawunder the Geneva Conventions and the additional protocols – in parti-cular, the principles of impartiality, neutrality and independence, aswell as the working principle of confidentiality.88 It considered that theright to non-disclosure of information in the possession of employees injudicial proceedings is necessary for the effective discharge by the ICRCof its mandate. Therefore, the parties to the Geneva Conventions andthe additional protocols had assumed a conventional obligation toensure non-disclosure of information in judicial proceedings of infor-mation relating to the work of the ICRC, and the ICRC had a right toinsist on such non-disclosure.89 As regards customary international law,the ratification of the Geneva Conventions by 188 states could be con-sidered as reflecting the opinio juris of these state parties, which led theChamber to conclude that the ICRC had a right under customary inter-national law to non-disclosure of information. The evidence of theformer employee of the ICRC sought by the prosecutor should thereforenot be given.90

According to the Rules of Procedure for the International CriminalCourt (ICC), information provided by the ICRC is privileged, and conse-quently not subject to disclosure, unless the ICRC waives this privilegeor the information is contained in public statements and documents ofthe Committee.91

88 International Tribunal for the Former Yugoslavia, Trial Chamber, Prosecutor v. Simicet al., Decision on the prosecution motion under rule 73 for a ruling concerning thetestimony of a witness, 27 July 1999, paras. 51–59.

89 It is interesting to note that this reasoning is parallel to the functional approachadhered to by the ICJ in relation to the United Nations in the Reparation for Injuries case,where the Court stated that: ‘The functions of the Organization could not be effectivelydischarged if they involved the concurrent action, on the international plane, of fifty-eight or more Foreign Offices, and the Court concludes that the Members haveendowed the Organization with capacity to bring international claims when necessi-tated by the discharge of its functions.’ Reparations for Injuries Suffered in the Services of theUnited Nations, ICJ Reports, 1949, p. 180.

90 International Tribunal for the Former Yugoslavia, Trial Chamber, Prosecutor v. Simicet al., Decision on the prosecution motion under rule 73 for a ruling concerning thetestimony of a witness, 27 July 1999, paras. 73–74.

91 International Criminal Court, ICC-ASP/1/3, Rules of Procedure and Evidence, Adopted by theAssembly of State Parties, 3–10 September 2002, rule 73(4).


A final point worth noting about the ICRC is that it is one of the veryfew non-state actors which has been granted observer status at the UNGeneral Assembly. This status was given in consideration of ‘the specialrole carried on accordingly by the International Committee of the RedCross in international humanitarian relations’.92

2.5 The classical concepts relating to international legalpersonality in modern doctrine

In the 1920s, Oppenheim distinguished between subjects of international

law and international legal persons. Not-full sovereign states could be ‘onlysubjects of law’, thus being ‘imperfect’ international persons.93 Thesame distinction is made in the Restatement (Third), written in 1987:

This part deals with entities that are persons under international law, i.e. thosethat, to varying extents, have legal status, personality, rights, and duties underinternational law andwhose acts and relationships are the principal concerns ofinternational law. The literature of international law has sometimes referred to‘subjects’ of international law (rather than persons). But the term ‘subjects’ mayhave more limited connotations, suggesting that such entities have only rightsand obligations.94

This explanation is both confusing and circular, in that it suggests that‘legal status’ and ‘personality’ are indicia of persons under internationallaw. It is, however, clear that the Restatement (Third) regards legalsubjects as entities that may have ‘only rights and obligations’. Thismeans that legal personality would include something more, presum-ably legal capacity and maybe also a capability, or an entitlement,to participate in the formation of international customary law.The Restatement supports the former element, for it states that indivi-duals have been accorded some aspects of personality, as some inter-national agreements give individuals remedies before internationalbodies. The relationship between legal personality and international law-making is not discussed.95 In modern international legal doctrine, the

92 A/RES/45/6, Observer Status for the International Committee of the Red Cross, 16 October 1990.In 1994, observer status was also granted to the International Federation of the RedCross and Red Crescent Societies, A/RES/49/2, Observer Status for the InternationalFederation of the Red Cross, 19 October 1994.

93 Oppenheim, International Law: A Treatise, p. 134.94 Restatement of the Law Third: The Foreign Relations Law of the United States, The American Law

Institute, 1987, I, p. 70 (hereafter ‘Restatement (Third)’).95 Restatement (Third), pp. 24 ff., 70–71.


connotations ‘subject of international law’ and ‘international legalperson(ality)’ are generally used interchangeably.96 I shall follow thatpractice here.

As regards other concepts that are related to international legal per-sonality and the practical meaning of the term the views are slightlyvaried, as will be discussed in more detail in relation to the moderntheories of international law.97 It is generally held that being an inter-national legal person means that an entity is, or is capable of being,endowed with rights, duties and capacities directly under internationallaw. For instance, the Restatement explains that: ‘In principle, however,individuals and private juridical entities can have any status, capacity,rights or duties given to them by international law or agreement.’98 InAkehurst’s A Modern Introduction to International Law, Malanczuk suggestsa more precise list of requisites for legal personality, ‘the central issuesof which have been primarily related to the capacity to bring claimsarising from the violation of international law, to conclude valid inter-national agreements, and to enjoy privileges and immunities fromnational jurisdictions’.99 The term ‘legal capacity’ does not seem to sug-gest any predetermined combination of legal abilities but can signify allor one of several elements – for instance, ability to be a party to inter-national treaties, to send and receive legations, or to institute inter-national judicial proceedings.100 ‘Legal capacity’ will be used in thisstudy in this general sense, denoting all these different elements,which can be held by different actors in different combinations. Asregards IGOs, capacities are sometimes referred to as powers, e.g. indiscussions about the theories of attributed or implied powers.101 Thisexpression appears to emphasise the link between state intent and the

96 See, e.g., Peter Malanczuk, Akehurst’s Modern Introduction to International Law, 7th edn.,London: Routledge, 1997, p. 91, which is more elaborate; Oppenheim’s International Law,p. 16 (implicitly); Brownlie, Principles of Public International Law, p. 57 (implicitly); Bekker,The Legal Position of Intergovernmental Organizations, pp. 55–56 (implicitly). According toJan Klabbers, however, subjectivity is a status conferred by the academic community,while personality is (in principle) a status conferred by the legal system. Jan Klabbers,An Introduction to International Institutional Law, Cambridge University Press, 2002, p. 43.

97 See section 3.2. 98 Restatement (Third), p. 70.99 Malanczuk, Akehurst’s Modern Introduction to International Law, p. 91.100 See, e.g., the Report of the International Law Commission to the General Assembly on

the topic of relations between states and international organisations, YILC 1990, vol. II,pt. Two, pp. 86–87.

101 See YILC 1990, vol. II, Pt. Two, pp. 86–87, and the discussion on IGOs on p. 61.


objectives of the organisation. For NGOs and other non-state actors,I shall therefore consequently use the term ‘capacities’.102

Shaw, among others, adds the element of general recognition to per-sonality, stating that ‘International personality is participation plus someform of community acceptance. The latter element will be dependentupon many different factors, including the type of personality in ques-tion. It may be manifested in many forms and may in certain cases beinferred from practice.’103 The interrelationship between recognition,in thewidest sense, and international legal personality will be discussedin chapter 3 on theory.104 It is of interest to observe in this context,however, that the element of recognition, understood as the generalattitude of the international community towards an entity, has beendiscussed in Italian law in relation to international orders. In the caseof Bacchelli v. Comune di Bologna already mentioned, the Court wasconfronted with the question whether the Order of Santa MariaGloriosa enjoyed international legal personality, and whether theGrand Master could claim fiscal immunity on that ground. The Courtstated:

One of the fundamental indications of the effective position of the body is theattitude of the members par excellence of the international community, i.e. theconduct of the States as a whole with regard to: the treatment which the bodyreceives in respect of its claim to autonomy; entering into regular diplomaticrelations with it; allowing it to participate by full right in international organ-izations, etc.105

The Court held that the debate on the constitutive or declaratory theoriesof recognition of states was out of place in this context, and concentratedon the ‘effectiveness’ of the claimed sovereignty. After having examinedthe evidence in this regard, the Court concluded that: ‘It is not the lack ofrecognition by the Italian State, but the insubstantiality of the premises

102 A related terminological question is whether an entity can be a subject of law or a legalperson to a greater or lesser extent, or if the answer is simply ‘yes’ or ‘no’. In the view ofSchermers and Blokker, to be an international legal person ‘means only to be capable ofbearing rights and duties’, International Institutional Law, p. 981 (emphasis in original).According to other writers, an entity can be a subject of law in some respects or have alimited legal personality. Brownlie states that ‘the entity concerned may still havelegal personality of a very restricted kind’, Principles of Public International Law, p. 57.In Oppenheim’s International Law, the expression legal subject ‘to a limited extent’ isused, p. 17.

103 Shaw, International Law, p. 139. See section 3.2. 104 Chapter 3.105 Bacchelli v. Comune di Bologna, Italian Court of Cassation, 20 February 1978, in 77 ILR

(1988), p. 625.


uponwhich the supposed international personality of the Order of SantaMaria is based, which leads to the finding that the ‘‘GrandMaster’’ is to betreated as equal to a common citizen.’106

2.6 The relationship between personality and themaking of international customary law

As has been mentioned above, treaty-making capacity is generally seenas one component, as well as an indicium, of international legal person-ality. The linkage between legal personality and customary inter-national law is not as clear. In general textbooks on international law,personality is often discussedwithout any reference to the developmentof customary law.107 However, since states are both subjects and thecreators of international law, the question might be put whether thereis a relationship between international law-making and legal personality.Article 38 of the Statute of the International Court of Justice definescustomary law as ‘international custom, as evidence of a general prac-tice accepted as law’. Although it is not explicit in the article who are theactors forming the custom or accepting it as law, it is generally held thatstates are the relevant actors in this regard. Nevertheless, it can bediscussed how static that definition is and what its relation is to inter-national legal personality.

Four alternative views can be suggested. First, it can be held that thereis no relationship and that – no matter if IGOs and other entities are orbecome subjects of international law – states will continue to be theonly law-makers. Secondly, one may take the view that some entities(not only states) have personality and some of these participate in law-making, without any connection of one to the other. Thirdly, itmight besuggested that there is a relationship in the sense that participation inlaw-making is a consequence of unlimited international personality,and that full international legal persons are entitled to such participa-tion. Fourthly, it can be held that participation in the creation of inter-national customary law is an indicium of personality.

Although Michael Byers is a contemporary writer who borrows con-ceptual tools from the discipline of international relations (I shall

106 Ibid., pp. 625–626.107 Oppenheim’s International Law, pp. 16–22; Shaw, International Law, pp. 137 ff.; Harris, Cases

and Materials, pp. 101 ff. (with the exception of a couple of questions on p. 143);Malanczuk, Akehurst’s Modern Introduction to International Law, pp. 91 ff.


return to this later), I believe that his theories can illustrate the classicalview of the relationship between international legal personality andlaw-making. Byers asserts that having full legal personality means anentitlement to participate in the process of law creation.108 In his view,the ‘principle of personality’ qualifies participation in law-making,which means that he supports the third of the views described above.That this theory is the classical one is supported by the traditionalnotion of state sovereignty, which contradicts the possibility that anon-state entity can have an independent influence on the legal systemthat is binding on states. More generally, it is also reasonable to assumethat there is a link between the possibility of an entity participating inlaw-making and itself being bound by these rules, which is problematicin the case of non-state actors. To take into account the informal orindirect influence of non-state actors on law-making for determiningtheir legal status – i.e. to interpret their influence as an indicium of legalpersonality – would be to take a step further away from the classicaldoctrine. For example, Van Hoof remarks that although private personsand organisations have come to play a more important role as bothsubjects of international law and as participants in the creation of law,this has not basically altered the traditional paradigm, as private parti-cipation is always ‘indirect’, i.e. channelled through state consent.109

The practice of intergovernmental organisations, as distinct from thepractice of states that take place within such organisations, has beendiscussed as one potential candidate of customary law formation byentities other than states.110 But even if it is accepted that IGOs them-selves participate in the formation of customary law, this can beregarded as relatively uncontroversial, since IGOs are created and, to agreater or lesser extent, controlled by states. Direct non-state participa-tion in the formation of customary law, on the other hand, wouldquestion the whole traditional paradigm. Nevertheless, supporters ofmodern strands of international legal theory often put emphasis on theinfluence of non-state actors on the formation of both treaty law andcustomary law. I shall describe this in more detail in chapter 3.

108 Michael Byers, Custom, Power and the Power of Rules: International Relations and CustomaryInternational Law, Cambridge University Press, 1999, p. 75. For a more thoroughdescription of Byers’ view on international legal personality, see section 3.2.

109 G. J. H. Van Hoof, Rethinking the Sources of International Law, The Hague: Kluwer, 1983,p. 63.

110 For an overview, see Karol Wolfke, Custom in Present International Law, 2nd rev. edn.,Dordrecht: Martinus Nijhoff, 1993, pp. 79–83.


3 International legal theoryand non-state actors

3.1 Introduction

Most topics of academic legal writings have probably been chosenbecause there are no answers, or contradictory ones, to a particularproblem in the recognised legal sources. One approach is to choose,explicitly or implicitly, one of several international legal ‘methods’,‘theories’ or ‘schools’, or to attempt to create a new one. If such a choiceis explicitly described before the legal problem is embarked upon, thestudy is provided with a scholarly appearance. The idea of the investiga-tion and the choice of method may seem to be the result of ‘somenonmethodological method, a nonpolitical academic standard thatallows that method or politics to be discussed from the outside ofparticular methodological or political controversies’.1 Koskenniemiargues that the initial question of what method should be chosen forthe study assumes:

the existence or accessibility of some perspective or language that would notitself be vulnerable to the objections engendered by the academic styles thatcarry labels such as ‘positivism’, ‘law and economics’, ‘international law andinternational relations’, ‘legal process’, ‘feminism’ and ‘critical legal studies’.But there is no such neutral ground.2

Even if it were possible to choose a theory and method from suchneutral ground, this choice would require a meta-method, which inturn would require a meta-meta method and so on. This, of course, isnot how it happens, personal choices must be admitted at some point.The choice of thewriter tomake a ‘positivist’ study, an ‘idealist’ study or

1 Martti Koskenniemi, ‘Letter to the Editors of the Symposium’, 93 AJIL (1999), p. 352.2 Ibid.

79

something else is often a choice of style of argument and, in some cases,of the preferred solution. It could be argued that it would bemore honestsimply to argue for the ‘best’ solution rather than to elaborate on theory.I believe, however, that an explicit decision about theoretical choiceswillin most cases make the argument more transparent. An active choice oftheoretical approach will also require some degree of consciousnessabout moral and political preferences affecting the study.

As regards the topic of the actors of international law and their legalstatus, different theories andmethodsmight lead to different results, aswill be shown below.3 Yet, these theories are often generally formulatedand difficult to compare because they have different objectives or takedifferent professional roles as their starting point.4 The rule approach tointernational law could be described as the judge’s usual, concreteworking method, as seen from a position within the system itself.Although it draws a more general picture of international law as asystem of rules, its main objective is not to explain what law is, buthow to find a solution. By contrast, the process and policy orientationsobserve the processes that shape law and policy from a distance. Theydirect their explanation and message to the entire legal profession, andsuggest that lawyers should aim at the realisation of common values.Lawyers belonging to critical theories or post-modern views locate thewhole of their discussion at the meta-level, leaving the task of solvingconcrete legal conflicts to their unfortunate colleagues within the judi-ciaries and foreign ministries.

There is some dispute over the definitions of ‘theories’, ‘methods’ and‘schools’. This mixture of ontological and epistemological elements is aconsequence of the lack of a general agreement on what constitutes the‘rule of recognition’ in international law – or indeed if there is one.5 The

3 Section 3.2.4 Richard Falk has stated: ‘There is a tendency to discuss which approach to internationallegal studies is the correct one. This produces rather sterile arguments by advocates ofone approach against those of another. Such polemics overlook the important factthat the main established approaches all serve a useful function, and this usefulnessnormally accounts for their existence . . . Oneway of avoiding the necessity for choice isto recognize that each particular approach has its own set of intellectual objectives.’‘International Legal Order: Alwyn V. Freeman v. Myres McDougal’, 59 AJIL (1965), p. 66.

5 According to Hart, such a rule of recognition would specify sources of law and providegeneral criteria for the identification of its rules. In international law, ‘wemust wait andsee whether a rule gets accepted as a rule or not; in a system with a basic rule ofrecognition we can say before a rule is actuallymade, that itwill be valid if it conforms tothe requirements of the rule of recognition’. H. L. A. Hart, The Concept of Law, OxfordUniversity Press, 1961, pp. 209, 229 (emphasis in original).


theoretical question about what law is and what it is not overlaps withthe problem ofmethod, of how one can find knowledge about law and asolution to a particular problem. A strictly rule-oriented lawyer wouldhold that existing rules provide solutions to most international legalproblems, and only sources that provide evidence about these rules arerelevant. If there is no rule for a particular problem, the lawyer shouldleave it aside. On the other hand, a theory that regards international lawas vague in its nature and legal decisions as always incorporating anelement of choice accepts that all answers cannot be found in theexisting rules themselves, or in evidence about these rules. Such atheory would therefore adopt a more open attitude to sources.International law – international relations theory, for its part, assertsthat the legal paradigm and legal concepts are no longer adequate toolsfor dealing with changing realities. This theory consequently acceptsthat new legal methods will have to be elaborated with the help ofinstruments from international relations.

The issue of international legal actors – or, more specifically, thelegal status of NGOs – lies at the crossroads of changing politicalrealities and traditional principles, of lege lata and lege ferenda and ofdifferent theoretical approaches. The question however, is, if or howdifferences in theory become apparent when applied to the sameconcrete problem. Below I shall examine how different theoreticalapproaches attack the problem of the actors of international law.More specifically, the first issue to be considered is the problemof who the actors in international law are according to different theo-retical approaches, and how the question of ‘actors’ relates to conceptssuch as subjects and objects of law, legal personality and legal capa-city. This is the ontological side of the problem.6 The second issue is ofan epistemological nature and raises questions about the methodand sources employed by different approaches when answeringthe question of how it can be determined that a new actor has becomepart of the legal system. Because of the interconnectedness betweeninternational legal theory and method, the discussion will includesome elements of method although its main objective is todescribe international legal theory and different approaches to non-state actors.

6 For reasons of clarity, parts of the discussion in chapter 2 on the historical view oninternational legal personality will be repeated here.

INTERNAT IONAL LEGAL THEORY AND NON-STATE ACTORS 81

On the basis of the different theoretical approaches described, somebasic assumptions on international law will be formulated togetherwith a method, or a general approach to international law and itsconcepts, for the purpose of investigating the legal status of NGOs.

3.2 The actors of international law in internationallegal theory

Introduction

The different theories and methods will be presented in three maincategories, the rule-oriented approach, the process-oriented approachand the international law–international relations approach. In reality,the number of views that scholars of international law take on theore-tical and methodological issues are almost as many as the scholarsthemselves. Naturally, a categorisation of theories draws only a simpli-fied picture. That is partly the point. However, it is also to some extentsynthetic to place one theory beside another, as different theories havedifferent purposes and sometimes deal with different issues. It is, forinstance, not unlikely that a person who argues for a process-orientedapproach for international law in scholarly writings uses a rule-orientedmethod when faced with the task of solving a concrete legal problem asa judge or legal adviser.7 Most writings within the field of internationallaw–international relations do not attempt to answer a particular legalproblem. One proponent of this theoretical strand explains that it ‘doesnot purport to be . . . a true ‘‘legal method’’ capable of answering doc-trinal questions, like the positivist approaches’.8 Several writers canalso be categorised in differentways. In particular, the process approach

7 Another way of looking at the problem is to say that the theoretical/methodologicaldiscussions are performed at a different level than the legal practice, or at a certaindistance from it, which just continues its work without taking much notice of theacademic discourse. Koskenniemi writes: ‘If international law consisted in a smallnumber of argumentative rules through which it was possible to justify anything, whatwere the consequences to . . . my practice in the legal department of the ForeignMinistry? Or more accurately: I posed no question but continued writing articles aboutvalid law and memoranda to the Minister arriving at definite interpretivestatements . . . This was the problem of the relationship between academic theory/doctrine . . . and practice, or of the relation between my (external) description of thestructure of legal argument and my (internal) participation in that argument.’Koskenniemi, ‘Letter to the Editors of the Symposium’, p. 356.

8 Kenneth W. Abbot, ‘International Relations Theory, International Law, and the RegimeGoverning Atrocities in Internal Conflicts’, 93 AJIL (1999), p. 362.


and the international law–international relations theories are close insome respects and in their treatment by some writers.9

Notwithstanding these problems, and the fact that most lawyerswould probably define their own position as somewhere in the middleof the range of theories, I shall use a simplified categorisation to illus-trate alternative theoretical views on the actors of international law. Asthe rule approach and the process approach can be seen as representa-tives of the two ends of a scale in international legal argument they areuseful for clarifying the discussion. The international law–internationalrelations theories are interesting for another reason; they attempt tofind ways to open up the legal paradigm to phenomena traditionallycategorised as ‘non-law’ in order to reshape legal tools so that they candeal with new phenomena, such as non-state actors.

Not only are the theoretical andmethodological views varied: even thedescriptions and categorisations of these views are many and diverse.Some would prefer to describe rule-oriented lawyers as ‘positivists’. Theexpression ‘rule-oriented’ has been chosen here in consequence of myaim to describe different views on the general structure of internationallaw and how such views relate to its subjects and to other actors. The ruleapproach is thus understood as the theory that holds that there areinternational legal rules that are more or less ‘ready’ to apply, and thatlegal decisions ought to be taken through the application of these rules. Inthat sense, it is indeed the same thing as ‘positivism’ (and this is probablythe label that the writers referred to would apply to themselves).10 But‘positivism’ is also often regarded as the opposite of naturalism and thebelief in a higher law, or morality, while a ‘process-oriented’ approach tointernational law is something different. Such an approach does notnecessarily have to do with morals or values outside the legal systemitself (although it might have, e.g., in the theory elaborated by the NewHaven school). What is meant here by a ‘process approach’ is the viewthat international law is created by a constant and complex process of

9 E.g. the New Haven school and Harald Honju Koh, ‘Transnational Legal Process’, The1994 Roscoe Pound Lecture, 75 Nebraska Law Review (1996), pp. 181–207. Some writerswho use international relations theory are however more rule- than process-oriented,particularly Anthony Clark Arend, Legal Rules and International Society, Oxford UniversityPress, 1999, pp. 26 ff. and (to some extent) Michael Byers, Custom, Power and the Power ofRules: International Relations and Customary International Law, Cambridge University Press,1999, pp. 7, 49–50.

10 By some called ‘formalism’, see Mary Ellen O’Connell, ‘New International LegalProcess’, 93 AJIL (1999), p. 335.


decisions, not only in courts but also within foreignministries, IGOs and,according to some, by non-state actors. According to this view, rules arejust ‘accumulated past decisions’, and there are no, or almost no, cases orsituations when a rule is just ‘applied’.11

The rule approach

Who are the actors of international law?

The primary objective of the rule approach to international law can beconsidered to be to provide the judge or decision-maker with a methodto deal with concrete legal problems, rather than to investigate thenature of international law or its place in society. It is thus more amethod than a theory. Some more committed rule-oriented writers,however, draw a broader picture, advocating the importance of uphold-ing a clear distinction between law andpolitics in order to avoid the dan-gers of ‘pathological’ phenomena such as relative normativity or social,political or moral considerations being dwelt on in court. Prosper Weil,for example, has criticised ‘the lack of rigor too often shown nowadaysin handling the distinction between the non-normative and the norm-ative’.12 In the South West Africa case, Judges Spencer and Fitzmauriceemphasised that various considerations of a non-juridical character –social, humanitarian and other – were matters for the political ratherthan the legal arena.13 But apart from these more general considera-tions, the rule approach has its stronghold among lawyers who, whileadmitting that the line between law and politics or between lege lata andlege ferenda is not always clear, need a technique for the usage of legalsources in order to be able to do their job and provide answers to legalproblems. In their contribution to a seminar onmethod at the AmericanSociety of International Law, Bruno Simma and Andreas Paulus notedthat ‘the lawyer’s role is not to facilitate the decision-maker’s dilemmabetween law and politics (and, occasionally, between law and morals),but to clarify the legal side of things’.14 The problem-solving aim of therule orientation does not, however, necessarily mean traditional orstrictly internal legal methods. For example, Anthony Clark Arend has

11 Rosalyn Higgins, Problems and Process: International Law and How We Use It, Oxford:Clarendon Press, 1994, p. 3 (emphasis in original).

12 Prosper Weil, ‘Towards Relative Normativity in International Law’, 77 AJIL (1983),p. 415. The expression ‘pathological’ is also Weil’s, at pp. 416, 417.

13 South West Africa case, ICJ Reports, 1962, p. 466.14 Bruno Simma and Andreas L. Paulus, ‘The Responsibility of Individuals for Human

Rights Abuses in Internal Conflicts: A Positivist View’, 93 AJIL (1999), p. 307.


outlined a method for determining when an international legal rule isat hand, but has also included discussions and conclusions from thefield of international relations theory in this method.

For the rule orientation, the question about the relevant actors ofinternational law is a question about its subjects. An actor that is not asubject of international law may have political or even legal influencebut will still remain on the outside of the legal system, and is thereforeirrelevant. In their elaborate book on international institutional law,Schermers and Blokker have observed that the European Union ‘has nointernational legal personality of its own. It therefore has no status, anddoes not exist, in international law.’15 Although the international legalpersonality of IGOs differs from that of NGOs, the expression used isillustrative for a rule-oriented view on personality and the legally rele-vant actors of international law.

As illustrated by Schermers’ and Blokker’s statement, a characteristicof the rule orientation is the notion of international law as structuredaround dichotomies: it is public as opposed to private, it is internationalas opposed to national, it is law as opposed to politics.16 In a discussionabout the position of the individual in international law, for example,Harris states that:

For the most part, however, the individual remains an object, not a subject, ofinternational law whose most important characteristic for international lawpurposes is his nationality.17

Harris’ statement seems to indicate that an entity cannot be somethingbetween a subject and an object, or almost a subject. The question is notone of degree; if you are not on the inside of the legal system, you are onthe outside.18

15 Henry Schermers and Niels M. Blokker, International Institutional Law: Unity withinDiversity, 3rd rev. edn., Dordrecht: Martinus Nijhoff, 1999, p. 977 (emphasis added).

16 This has been thoroughly discussed and criticised by feminist theories of national andinternational law, see, e.g., Hilary Charlesworth et al., ‘Feminist Approaches toInternational Law’, 85 AJIL (1991), pp. 613–645 and Hilary Charlesworth, ‘FeministMethods in International Law’, 93 AJIL (1999), pp. 379–394.

17 D. J. Harris, Cases and Materials on International Law, 5th edn., London: Sweet & Maxwell,1998, p. 142.

18 However, Harris also suggests that there are exceptions to the general rule, since ‘The‘‘procedural capacity of the individual’’ has more recently been recognised before theEuropean Court of Justice and in treaties on human rights.’ Thus, Harris recognises thatthe individual – and probably also other non-state actors – are something other than‘objects’ of international law to the extent that they have procedural capacity. Harris,Cases and Materials, p. 142.


The concepts of ‘capacity’, ‘personality’, ‘subject’ and ‘object’ are theclassical tools of the rule-oriented approach. Usually seen in the light oftheir long usage within the national legal field, these concepts give theimpression of clearly defined legal concepts. Within the field of inter-national law, however, this clarity is somewhat illusory, as there are nogenerally accepted definitions of the concepts.While there is a commonunderstanding that the expressions ‘subject of law’ and ‘legal person-ality’ have to do with rights, obligations and legal capacity, it is notpossible to deduce a fixed set of powers or capacities from the fact thatan entity is a legal person. For the rule-oriented approach, legal person-ality is like a jigsaw puzzle, fromwhich different entities have differentpieces.19 But, in the view of the rule-oriented lawyer, a non-state actorcannot possess all the pieces:

The common denominator of all subjects of international law is the quality ofbeing endowed with legal capacity. Corresponding to the different role andrelevance of units participating in the relations of the international society,the range of legal capacity is not uniform. Only independent States possessingsovereign equality in their mutual relations enjoy all-round legal capacity com-prising any legal position provided by the international legal order. All othersubjects of international law possess only a capacity which is limited to thefunction they are to fulfil in that legal order.20

The whole traditional international legal paradigm, the notion of inter-national law itself – its structure, how it is created and from where itderives its binding force – excludes the possibility that non-state actorshave any substantial role. This would be a contradiction in terms, for:‘International law is the body of rules which are legally binding onstates in their intercourse with each other.’21

19 According to Schermers and Blokker, however, the question of personality requires an‘absolute, ‘‘black and white’’ answer (yes or no)’, while the question of legal powersdepends on which powers have been attributed to the IGO. Schermers and Blokker,International Institutional Law, p. 981. See also Article 4(1) of the Statute of theInternational Criminal Court, which provides that ‘The Court shall have internationallegal personality. It shall also have such legal capacity as may be necessary for theexercise of its functions and the fulfilment of its purposes.’

20 Hermann Mosler, ‘Subjects of International Law’, EPIL, 4, Amsterdam: North-Holland,2000, p. 710.

21 Sir Robert Jennings and Sir ArthurWatts (eds.), Oppenheim’s International Law, I, 9th edn.,London: Longman, 1996, p. 4. It is, however, recognised in Oppenheim’s International Lawthat ‘states are not the only subjects of international law. International organisationsand, to some extent, also individuals may be subjects of rights conferred and dutiesimposed by international law.’ Ibid.


We are reminded of the dualistic structure of international law.Public international law regulates the relations between states, notthe relations of private actors established within national jurisdictions.NGOs and other non-state actors do, by definition, not belong withinthis field of law.

How can it be determined that a new actor has becomepart of the legal system?

Aswasmentioned earlier, the question of how a new actor becomes partof the legal system is the question of the existence of a new inter-national legal person for the rule-oriented lawyer. In the Reparations for

Injuries case, the ICJ used a teleological method for answering the ques-tion of the legal personality of the United Nations. A teleologicalmethod is about as far as the rule approach can go in terms of discretionwhen answering a legal question. The Court stated:

in the Opinion of the Court, the Organization was intended to exercise andenjoy, and is in fact exercising and enjoying, functions and rights which canonly be explained on the basis of possession of a large measure of internationalpersonality and the capacity to operate upon an international plane . . .

Accordingly, the Court has come to the conclusion that the Organizationis an international person . . . 22

Thus, in the case of the legal personality of IGOs, it is the intention ofthemember states that is central. This intention need not bemanifestedexplicitly, but can be implied from ‘functions and rights’ and practices.Although the state-created IGOs have a different character than NGOs,the Reparation opinion may give some indication as to the Court’sgeneral approach to the concept of legal personality as induced fromfacts ‘on the ground’ rather than deduced from an a priori notion ofinternational law and its ‘true’ subjects.

The view expressed on the more general issue of international legalpersonality in the most recent edition of Oppenheim’s International Law isin line with the ICJ’s approach:

To the extent that bodies other than states directly possess some rights, powersand duties in international law they can be regarded as subjects of internationallaw, possessing international personality.23

22 Reparation for Injuries Suffered in the Service of the United Nations, ICJ Reports, 1949,pp. 178–179.

23 Oppenheim’s International Law, I, p. 16.


The appropriate method for determining legal personality according tothis view consists of one single step: investigating to what extent aparticular entity does in fact directly possess some rights, duties andpowers (or capacities). The legal personality of the particular entityinvestigated is equivalent to the combination of legal relationsidentified.

Some rule-oriented writers suggest that the recognition by states ofan entity as capable of possessing international rights, duties and capa-cities is a separate criterion for legal personality, additional to suchpossession as a matter of fact. In his article on the ‘Subjects ofInternational Law’ in the Encyclopedia of Public International Law, Moslerasserts that:

Subjects of international law are States, international organizations and institu-tions possessing the status of legal capacity in international relations, andorganized groups or corporate entities of various kinds whose legal capacity totake part in legal relations is recognized by States . . . The common denominator of allsubjects of international law is the quality of being endowed with legalcapacity.24

The suggestion that an entity must, first, be recognised as capable oftaking part in legal relations and, second, have rights, etc. actuallyconferred upon it in order to be a legal person seems somewhat com-plicated. An interpretation that could solve this problem would be toregard the actual conferral of rights and duties as implying, or evenbeing the same thing as, the required recognition. Mosler’s continued dis-cussion on the subjects of international law does not provide clear sup-port for such an interpretation, however. He distinguishes betweendifferent kinds of entities, among which only states are ‘primarysubjects’, as ‘The legal capacity of all other subjects is derived fromStates; they are either created by States or, if they have otherwise comeinto being . . . recognised by States. These may be called secondarysubjects of international law.’25

24 Mosler, ‘Subjects of International Law’, p. 710 (emphasis added). See also Shaw, whostates that ‘International personality is participation plus some form of communityacceptance. The latter element will be dependent upon many different factors,including the type of personality in question. It may be manifested in many forms andmay in certain cases be inferred from practice.’ Malcolm N. Shaw, International Law, 4thedn., Cambridge University Press, 1997, p. 139.

25 Mosler, ‘Subjects of International Law’, p. 718. It is not entirely clear if Mosler uses theterm ‘legal capacity in international law’ as synonymous with, or something differentfrom, legal personality.


Mosler’s view on the position of the individual can illustrate hisgeneral approach to the legal status of non-state actors. He observesthat international law ‘takes account of the individual’, and that the‘human person does not as such take part in international relationsand is, consequently, not a subject of international law in the propersense’. On the other hand, the individual is ‘not solely an object ofrules of international law’ and has an ‘important position’ as regardsthe substantial and procedural rights contained in the European andAmerican human rights conventions.26 Mosler seems reluctant to saythat international law ‘applies’ to individuals in some respects orthat the individual has ‘procedural capacity’ under some internationaltreaties. The whole argument is based on the distinction betweenstates and other actors, and this distinction seems to preventthe individual from being a subject in ‘the proper sense’ even withregard to human rights treaties. Still, it is entirely clear to Mosler thatstates, as a community, are capable of creating new subjects of inter-national law.27

Mosler is not the only writer who distinguishes recognition from theactual possession of rights, duties and/or capacities. According toBrownlie, ‘an entity of a type recognized by customary law as capableof possessing rights and duties and of bringing international claims, andhaving these capacities conferred upon it, is a legal person’.28 Brownliecontinues:

If the first condition is not satisfied, the entity concerned may still have legalpersonality of a very restricted kind, dependent on agreement or acquiescenceof recognised legal persons and opposable on the international plane only tothose agreeing or acquiescent.29

Recognition in customary international law is probably what Moslermeans by the expression ‘whose legal capacity to take part in legalrelations is recognized by States’. Brownlie’s statement can be inter-preted only as meaning that recognition in customary law is not thesame thing as actual conferral of rights, duties and/or capacities. Suchrecognition seems to be of a general kind, opposable erga omnes andvalid for all different aspects of legal personality. As Mosler, Brownlieargues from the standpoint that certain types of entities are the only

26 Ibid., pp. 725, 711–712, 724. 27 Ibid., p. 718.28 Ian Brownlie, Principles of Public International Law, 5th edn., Oxford University Press,

1998, p. 57.29 Ibid.


‘real’ subjects, i.e. the only subjects that are recognised as capable ofhaving all rights, duties and capacities. Brownlie notes:

The number of entities with personality for particular purposes isconsiderable . . . Thus, the individual is in certain contexts regarded as a legalperson, and yet it is obvious that he cannot make treaties. The context of pro-blems remains paramount.30

The point of Brownlie’s argument appears to be that, because an entityhas particular rights, duties or capacities one cannot assume that it hasother, or the full range, of rights, duties and capacities. Such a conclu-sion is consistent with the views expressed by the ICJ in the Reparationfor Injuries case and in Oppenheim’s International Law. Thus, to the rule-oriented lawyer, legal status and personality are not ‘contagious’.Different instances of legal status for non-state actors under treaty laware seen as individual phenomena that are exceptions to the generalrule of ‘non-personality’. One capacity does not imply another capacity,and personality opposable to one state is not necessarily opposable toanother. Mosler demonstrates this view clearly when he claims that:‘Procedural rights to enforce substantive rights by the individuals them-selves must be characterized as special treaty law rather than as pre-scribed by general international law.’31

According to this approach, a new legal person has thus not beencreated until the number or scope of treaty provisions which endow itwith some form of legal status covers the major part of internationallaw, or when states have expressed general recognition by way ofcustomary law.

On the basis of the writings described above, the rule approach tointernational legal personality can be summarised in the followingway:

* The possession of rights, duties and powers is relevant for the questionof legal status and for legal personality, and may even be regarded asthe same thing as legal personality.

* States are the only international legal persons that possess the fullrange of rights, duties and capacities, and are the only entities thatare capable of enjoying such possession under international law as weknow it today.

30 Ibid., p. 68 (emphasis in original).31 Mosler, ‘Subjects of International Law’, p. 726.


* States can create new, ‘imperfect’, subjects of international law.* All non-state international legal persons derive their legal personality

from states.32

The process approach


The theory described here as the process approach to international lawin fact comprises a rather diverse group ofwriters who present differentlines of reasoning. Two major categories can be discerned within thegroup of writers with a process approach to law. The first category is thepolicy orientation, as represented by the New Haven school and by acouple of other scholars. Writers in this category are, inter alia, Chen,Lasswell, McDougal and Reisman as representatives of the New Havenschool, and Judge Rosalyn Higgins with her somewhat modified inter-pretation of the policy orientation. The second category is the inter-national legal process, with its successor the new international legalprocess (called by some ‘transnational legal process’). Within this cate-gory we find Chayes, Erlich and Lowenfeld as representatives of inter-national legal process, and Harold Koh and Mary Ellen O’Connell asspokespersons of new international legal process. I shall also brieflymention legal pluralism.

The policy orientation characterises international law as a process,a flow of individual decisions, rather than a system of rules. To writersof the policy orientation, the distinction between law and politics isnot particularly interesting, because law is the interlocking of authoritywith power. Moreover, the distinction between law as it is and law as itought to be is described as a false dichotomy.33 ‘When . . . decisions aremade by authorised persons or organs, in appropriate forums, withinthe framework of certain established practices and norms, then what

32 A different view as regards IGOswas elaboratedmainly by Seyersted, who argued that ifan IGO had at least one organwith a will distinct from that of themember states, it wasipso facto an international legal person. Such personality was not derived from states,but a consequence of the international legal order itself. Finn Seyersted, ‘InternationalPersonality of Intergovernmental Organizations: Do Their Capacities Really Dependupon the Conventions Establishing Them?’, 34 Norsk Tidschrift for International Ret Og JusGentium (1964). As already mentioned in section 2.3, however, the theory of objectivepersonality is not the dominant view today, but rather the theory of implied powers (asexpressed by, e.g., the ICJ in the Reparation for Injuries case), see Schermers and Blokker,International Institutional Law, pp. 978–979.

33 See Higgins, Problems and Process, p. 10.


occurs is legal decision-making. In other words, international law is acontinuing process of authoritative decisions.’34 Chen explains:

Authority refers to the normative expectations of relevant social actors –expectations of community members about who is to make what decisions, inwhat structures, by what procedures, and in accordance with what criteria.35

It follows from the policy orientation’s lack of absolute distinctionsbetween law and politics, or lege lata and lege ferenda, that the need fora clear definition of who are the actors of international law is not asimportant as for the rule approach. The starting point is an all-inclusivebirds’-eye view – or indeed the observations of an ‘extra-galactic obser-ver’ – over the processes that shape law and policy in the world.36 Theseobservations of power systems, threats to humankind and values of theglobal community lead to a highly abstract, yet at the same timedetailed, method for the jurisprudence of the world. The policy orienta-tion’s primary objective is not to provide practical tools for determiningsuch concrete problems as which actors possess rights directly underthe international legal system, but it nevertheless presents many gen-eral observations on the actors of the ‘world community process’.

The New Haven school divides the ‘world community process’ thatproduces policy and law into two interrelated categories, and identifiesrelevant actors for each one of them. Within the ‘global process of effectivepower’ the nation-state stands out as the major participant, while thepower of many ‘functional groups’ is increasing. It is further pointedout that the individual is the ultimate actor in all groups. Within the‘global process of authoritative decision’, the officials of nation-states con-tinue to be important decision-makers, but are joined by the officials ofIGOs, NGOs and other non-territorial entities.

The policy orientation is both a theory and a methodology. There is‘genuine pluralization’, and ‘with the appearance of many new partici-pants, there is also a broadening of access’.37 In order to become morerelevant, jurisprudence should adopt a policy-oriented method that canassist in assessing the transnational legal system and clarify goals and

34 RosalynHiggins, ‘Policy Considerations and the International Judicial Process’, 17 ICLQ(1968), pp. 58–59 (emphasis in original).

35 Lung-chu Chen, An Introduction to Contemporary International Law: A Policy-OrientedPerspective, New Haven: Yale University Press, 1989, p. 17.

36 Myres MacDougal and Michael W. Reisman, ‘International Law in Policy-OrientedPerspective’, in St J. MacDonald and Douglas M. Johnston, The Structure and Process ofInternational Law, Dordrecht: Martinus Nijhoff Publishers, 1986, pp. 103–129.

37 Ibid., p. 107.


policy alternatives in the emerging future.38 Such jurisprudence shouldrecognise that the whole of humankind constitutes a community, andextend its focus of inquiry to include it. Accordingly, the policy-orientedjurisprudence offers ‘a comprehensive inventory of possible modes ofparticipation’ in decision-making:

Besides the traditional nation-state, whether independent or associated withanother actor, theworld social and decision processes include intergovernmentalorganizations, non-self governing territories, autonomous regions, and indi-genous and other peoples, as well as private entities such as multinationalcorporations, media, nongovernmental organizations, private armies, gangsand individuals. An actor with actual or potential influence is a candidate forparticipation in the decision process.39

The most important actors from the policy-oriented lawyer’s viewpointare thus the ‘authorised decision-makers’, who aremainly state officialsbut to an increasing extent also officials of other organisations andentities. Jurisprudence at large should, however, have a much widerscope of inquiry, including all actors with influence.

In her book Problems and Process, Judge Rosalyn Higgins presents a lessabstract, and possibly less value-focused, version of the policy orientation.She discusses the actors of international law at some length in a chaptertitled ‘Participants in the International Legal System’. Higgins explains:

But I believe that there is room for another view: that it is not particularlyhelpful, either intellectually or operationally, to rely on the subject–objectdichotomy that runs through so much of the writings. It is more helpful, andcloser to perceived reality, to return to the view of international law as aparticular decision-making process. Within that process (which is a dynamicand not a static one) there are a variety of participants, making claims acrossstate lines, with the object ofmaximizing various values. Determinationswill bemade on those claims by various authoritative decision-makers – Foreign Officelegal Advisers, arbitral tribunals, courts.

Now, in this model, there are no ‘subjects’ and ‘objects’, but only participants.Individuals are participants, alongwith states, international organizations (suchas the United Nations, or the International Monetary Fund (IMF) or the ILO),multinational corporations, and indeed private non-governmental groups.40

38 Ibid., p. 113.39 Siegfried Wiessner and Andrew R. Willard, ‘Policy-Oriented Jurisprudence and Human

Rights Abuses in International Conflict: Toward a World Public Order of HumanDignity’, 93 AJIL (1999), p. 323. For a similar, but less provocative, statement by the‘founders’ of the NewHaven school, seeMacDougal and Reisman, ‘International Law inPolicy-Oriented Perspective’, p. 117.

40 Higgins, Problems and Process, p. 50 (emphasis in original).


Still, Higgins holds on to the view that: ‘International law is, for the timebeing, still primarily of application to states.’41

The protagonists in the early international legal process (ILP) weremore interested in the questions of how international legal rules wereused by the shapers of foreign policy than of the content of actual legalrules. They observed that international legal issues arose mainly in theprocess of making policy decisions, rather than before courts, andfocused especially on the way international law was incorporated intodecisions within foreign offices.42 The ILP clearly shared the policyorientation’s view of international law as mainly a constant process ofdecisions. New ILP, which is broader in scope and includes a normativeelement that is lacking in classical ILP, advocates ‘dynamic’ decision-making.43 The view that New ILP has of law-making demonstrates anon-legalistic approach to the question of actors of international law,for law-making is ‘a process of value-creation in which courts, agenciesand the people engage in a process of democratic dialogue’.44 Kohdescribes New ILP (in his terminology labelled ‘transnational legal pro-cess’) and its view on the actors of international law in the followingway:

Transnational legal process has four distinctive features. First, it is nontraditional:it breaks down two traditional dichotomies that have historically dominated thestudy of international law: between domestic and international, public andprivate. Second, it is nonstatist: the actors in this process are not just, or evenprimarily, nation-states, but include nonstate actors as well. Third, transnationallegal process is dynamic, not static. Transnational law transforms, mutates, andpercolates up and down, from the public to the private, from the domestic to theinternational level and back down again. Fourth and finally, it is normative. Fromthis process of interaction, new rules of law emerge, which are interpreted,internalized, and enforced, thus beginning the process all over again.45

41 Ibid., p. 39 (emphasis in original).42 O’Connell, ‘New International Legal Process’, pp. 334–337.43 O’Connell explains the difference between the two schools, ibid., p. 339. According to

her description, classic ILP describes what is actually occurring and explains actualevents, while New ILP also deals with the question of how international law should dealwith a particular question.

44 Koh, ‘Transnational Legal Process’, p. 188. The article is also cited and discussed inO’Connell, ‘New International Legal Process’, p. 338.

45 Koh, ‘Transnational Legal Process’, p. 184. While labelling his own theory ‘transnationallegal process’, Koh’s view is categorised as ‘new international legal process’ by Mary EllenO’Connell, and as ‘constructivist’ international law–international relations theory bySlaughter, Tulumello andWood. O’Connell, ‘New International Legal Process’, p. 335, andAnne-Marie Slaughter, Andrew S. Tulumello and Stepan Wood, ‘International Law and


A related theory is legal pluralism. According to Gunther Teubner, itscentral thesis is that ‘globalization of law creates a multitude of decen-tralised law-makingprocesses in various sectors of civil society, independ-ently of nation-states’.46 For Teubner, technical standardisation, humanrights and intra-organisational regulation in multinational enterprises(MNEs) are all forms of rule-making by private actors. At a time whensovereign states are losing their controlling potential and globalisation ishighly fragmented, Lex mercatoria – the transnational law of economictransactions – is in Teubner’s view themost successful example of globallaw without a state.47 This global law can be accurately explained onlyby a theory of legal pluralism and should not be measured against thestandards of national legal systems: ‘Global law grows from the socialperipheries, not from the political centres of nation-states and inter-national institutions.’ The theory shifts its attention from rules and sanc-tions to discourses and communicative networks, and the centralelements of a legal order are legal acts, not legal rules.48 Pluralistic theory,as the other process orientations, thus breaks down the traditionaldistinctions between the legal and the non-legal, between legal sourcesand empirical material and between legal persons and other actors.49

The issue of the actors of international law can be divided into theaspects of participation in decision-making processes and of the appli-cation of rules to different actors. As has been clear already, the processorientation is mainly concerned with the aspect of participation. Mostprocess-oriented lawyers seem to regard state officials as the main‘authorised decision-makers’ in the law-creating process. It is, however,emphasised by the approach that account is also taken of the non-stateactors that are taking part in this process to an increasing extent.50 Therole of non-state actors in shaping law is illustrated by Koh when heobserves that NGOs are ‘helping shape the direction of governmental

International Relations: ANewGeneration of Interdisciplinary Scholarship’, 92 AJIL (1998),p. 368.

46 Gunther Teubner (ed.), Global Law Without a State, Aldershot: Dartmouth, 1997, p. xiii.47 For references to writers who discuss the nature and terminology of lex mercatoria, see

section 1.2.48 Teubner, Global Law Without a State, pp. 3–13.49 Teubner goes as far as to claim that ‘It has proved hopeless to search for a criterion

delineating social norms from legal norms. The decisive transformation cannot befound in the inherent characteristics of rules, but in their insertion in the context ofdifferent discourses. Rules become legal as communicative events emerge using the[legal/illegal] binary code and produce microvariations of legal structure.’ Ibid., p. 13.

50 Koh points out that ‘the actors are not just, or even primarily, nation states’,‘Transnational Legal Process’, p. 184.


policies’, and Teubner when he points to how law has emerged from,inter alia, standard-making procedures in technical areas and profes-sional rule production.

For the determination of the question whether international law applies

to non-state actors, the process orientation rejects the classical conceptsrelated to this issue, such as ‘legal subject’ and ‘legal personality’. Italso rejects the traditional dichotomisation of law, and thereby thea priori exclusion of entire fields of society by the use of categorisationssuch as ‘domestic’, ‘private’, or ‘object’.51 What this more inclusiveapproach means for the concrete application of rules is not thoroughlydiscussed. Higgins observes that states are still at the heart of the inter-national system, but she also emphasises that individuals possess inter-national rights.52 Policy-oriented Wiessner and Willard note that ‘insome contexts, certain participants are authorised to invoke humanrights prescriptions and others are not’, but conclude that ‘policy-oriented jurisprudence does not promise or guarantee one correct,single answer . . . It does offer a detailed and self-aware approach toany problem.’53


In her discussion on the position of the individual in international law,Higgins denies that the classical concepts of subject, object, etc., or thegeneral nature of international law, can be the ‘cause’ of the ‘proceduraldisability’ that characterises the position of the individual in somerespects.54 In other words, she rejects deduction from the conceptsthemselves as a method of inquiry in this field. Higgins observes ‘Wehave erected an intellectual prison of our own choosing and then

51 Ibid., p. 185, andHiggins, Problems and Process, p. 49. Not all writers discuss this explicitly,but theirwide perspectives illustrate such a view; see for instanceWiessner andWillardin the AJIL symposium on method, who reformulated the question that was posed tothem since they thought it was too narrow: ‘The topic of this symposium was furtherclarified in a request from its editors that we cover the desirability vel non of holdingindividuals criminally or otherwise accountable for ‘‘atrocities committed during civilwars – murder, torture, rape indiscriminate attacks etc’’. . . . We posit that it is mostuseful to construe the topic under consideration in terms of proper response by theworld community to large-scale incidents of violence in internal contexts.’ Wiessnerand Willard, ‘Policy-Oriented Jurisprudence’, p. 318.

52 Higgins, Problems and Process, pp. 39, 53.53 Wiessner and Willard, ‘Policy-Oriented Jurisprudence’, pp. 324 and 334.54 Higgins, Problems and Process, p. 53.


declared it to be an unalterable constraint’, and there is no inherentreason why the individual should not be able to invoke internationallaw.55 Referring to the writings of Sir Hersch Lauterpacht, Higginssupports the view that ‘the individual does have certain rights owedto him under international law (and not just to his state)’.56 This indi-cates that she regards the question of rights as relevant for a discussionabout the actors of international law. Then she asks herself preciselywhat is meant when it is said that international law applies to indivi-duals – if it means that individuals can invoke it or that they are obligedto follow it. But at this point Higgins gives up, conceding that: ‘These aredifficult questions, and we need to approach the underlying issues stepby step.’57

More clearly policy-oriented writers, as was discussed earlier, puttheir main emphasis on decision-making, rather than on the applica-tion of law. It is the ‘global constitutive process’ that establishes theframework of institutions and processes for authoritative decision-makingand identifies ‘authoritative decision-makers’, i.e. the most powerfullaw-making actors.58 According to Wiessner andWillard, ‘an actor withactual or potential influence is a candidate for participation inthe decision process’.59 The policy orientation also emphasises thedynamic character of the decision-making process by suggesting that

55 Ibid., p. 49. 56 Ibid., p. 53 (emphasis in original).57 Ibid., p. 54. In a couple of her dissenting opinions to the decisions of the ICJ, Higgins has

applied something that reminds one of a process approach in that she seems to admit agreater freedom for the judge in decision-making, while at the same time emphasisingthe importance for the Court to explain its reasoning step by step. This is perhapsmostclearly illustrated by her dissenting opinion in the Legality of the Threat or Use of NuclearWeapons case, where she argues that the Court effectively pronounced a non liquet on thekey issue of the case. Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion,8 July 1996, Dissenting Opinion of Judge Higgins, paras. 2, 6–7. See also Falk,commenting on Judge Higgins’ ‘value-oriented contextualism’ in ‘Nuclear Weapons,International Law and the World Court: A Historic Encounter’, 9 AJIL 1997, p. 66. In thedescription of the process approach to international law in her book Problems andProcess, Higgins holds that the process-oriented lawyer does not recognise any lacunae ininternational law, because with this method ‘there are still the tools for authoritativedecision-making on the problem (by the use of analogy, by reference to the context)’.She also states that, in the case of outdated rules, law as process leaves more room forinterpretation and choice in accordance with later developments and values than therule orientation does. Higgins, Problems and Process, p. 10.

58 The ‘global constitutive process’ is one of two categories of decisions within the ‘globalprocess of authoritative decision’, the other category being decisions that control andregulate the transnational value processes. MacDougal and Reisman, ‘InternationalLaw in Policy-Oriented Perspective’, p. 107.

59 Wiessner and Willard, ‘Policy-Oriented Jurisprudence’, p. 323.


it enables scholars, advisers and decision-makers to be maximally effec-tive while ‘empowering non-state entities to play greater roles indecision’.60

The New ILP, in Koh’s version, requests the lawyer to take the fullscope of societal interaction into consideration when analysing theprocess and normativity of transnational law. As with the policy orienta-tion, Koh focuses on the influence of actors as the determining factorfor deciding their relevance. He recognises the importance of bothstates and non-states in shaping law: ‘As transnational actors interact,they create patterns of behaviour and generate norms of external con-duct which they in turn internalize.’61 Koh observes that non-stateactors are also influential as regards the national implementation ofinternational law, which in its turn shapes new policies:

Transnational legal process forces states to become more law-abiding . . . Whensuch a state violates international law, that violation creates frictions and con-tradictions that disrupt its ongoing participation in the transnational legalprocess. Transnational public law litigation brought by nongovernmental orga-nizations is designed precisely to provoke judicial action that will create suchfrictions, thereby helping shape the normative direction of governmental poli-cies. If this is so, nongovernmental organizations are not just observers of, butimportant players in, transnational legal process. Their actions influence theprocess and their inaction ratifies its outcomes.62

For Koh, the critical factor when determiningwhether an actor has beenaccepted into the system of transnational law is thus the influence suchan actor has on the shaping of law and policy.

New ILP may, however, look different when faced with a concretelegal problem. Mary Ellen O’Connell describes New ILP as dynamicand non-statist, including both state and non-state actors on the samelevel.63 Yet, when discussing the question of individual responsibility forgrave breaches of law in internal conflicts, O’Connell concludes that:

60 Wiessner and Willard conclude: ‘Human rights activists and nongovernmentalorganizations, for example, have been critical to the development of prescriptions,including the formation of the international criminal court.’ Ibid.

61 Koh, ‘Transnational Legal Process’, p. 188. The article is also cited and discussed inO’Connell, ‘New International Legal Process’, pp. 204, 205.

62 Koh, ‘Transnational Legal Process’, p. 207.63 O’Connell, ‘New International Legal Process’, p. 338, and Koh, ‘Transnational Legal

Process’, p. 184.


Sufficient state practice and opinio juris exist to permit the view that, through theoperation of custom, the ‘grave breaches’ regime can now be applied to internalarmed conflict . . . The evidence was certainly solid enough for a duly estab-lished decision maker to find a new rule.64

As demonstrated by this argument, the actors that determine the laware, first, states by way of their practice and opinio juris and, secondly,the ‘duly established decision maker’, in this case the ICTY. Moreover,the question whether the individual can be held responsible directlyunder international law in this particular situation is answeredthrough the traditional method of examining customary law. Therather discrete role of non-state actors in this operation is to participatein the formation of social values which should be taken into accountby the decision-maker.65 The only way for a non-state actor to becomea legally relevant actor, in the sense of having obligations underinternational law, is to be recognised as such by states in their formationof law.

The question of whether a new actor has been accepted into the legalsystem is closely related to the issue whether a general acceptance canbe inferred from the fact that a certain actor is a participant in somerespects. It was mentioned earlier that the rule approach, as repre-sented by Mosler, answers this question clearly by stating that theprocedural capacity of the individual under certain human rights trea-ties ‘must be characterized as special treaty law rather than as pre-scribed by general international law’.66 According to the ruleapproach, general recognition is thus decisive for an actor to be fullyaccepted into the system. Although this question is not answereddirectly by the process orientation – it would not be put that way – itis clear from the discussions referred to above that the process approachhas a wider notion of sources, a less state-centred view on internationallaw in general and that it permits greater independence for the lawyer(and legal jurisprudence as a whole) in the development of law. In thecase of an actor that already possesses some rights, capacities andother attributes of legal status, it is therefore not unlikely that theprocess-oriented lawyer or decision-maker will determine that a newactor has been accepted into the legal system in a more general sense.

64 O’Connell, ‘New International Legal Process’, p. 348. 65 Ibid., p. 349.66 Mosler, ‘Subjects of International Law’, p. 726.


International law and international relations

‘International relations is a discipline where theories of internationalrelations compete.’67 These theories seek to analyse causes, patternsand consequences of the behaviour of states and other actors in theinternational arena. Theories of international relations and of interna-tional law thus observe and analyse the same realities from the perspec-tives of two different paradigms.68 It is not my intention to describeinternational relations, or the interdisciplinary perspectives of interna-tional law–international relations, in any detail. The focus here is on thesingle question of the actors of international law.

International relations theory has, like international law, tradition-ally concentrated on states.69 The theory of realism, and its successorneo-realism, has dominated the field since the disillusioned era follow-ing the Second World War.70 Realism regards states as the only orprincipal actors of international politics. In an anarchical internationalsystem, states engage in a power struggle to protect their interests, ofwhich security is paramount. Moreover, realism denies all need to ‘openthe boxes’ of states, in other words it sees states as unitary actors. Forthis theory, law has no place, only power. Neo-realism, as representedby authors such as Kenneth Waltz, considers that the interacting unitsin the international system are states. States all carry out the samefunctions, and they all possess sovereignty, an attribute which is

67 Martin Hollis and Steve Smith, Explaining and Understanding International Relations,Oxford: Clarendon Press, 1990, p. 10.

68 Although one discipline has not always regarded the other as particularly relevant,there are early exceptions. Cambridge Law Professor Alexander Pearce Higginspublished Studies in International Law and Relations in 1928. Higgins advocated a balancebetween Realpolitik (which he considered had a ‘truth underlying its grotesque andhideous appearance’) and law: ‘In considering the principles which should guidestatesmen in the conduct of international relations, we shall do well to remember thewise words of Francis Bacon and thus avoiding the danger he indicates that ‘‘philo-sophers make imaginary laws for imaginary commonwealths, and their discourses areas the stars, which give little light because they are so high’’. Let us follow the advicewhich he gives and turn to the statesmen and diplomatists who have to deal with thehard concrete facts of state life, where they are faced with the conflicting desires andambitions of the representatives of other states.’ Alexander Pearce Higgins, Studies inInternational Law and Relations, Cambridge University Press, 1928, p. 5.

69 For overviews of different theories of international relations with references to writers,see Hollis and Smith, Explaining and Understanding International Relations and KennethW. Abbott, ‘International Relations Theory, International Law, and the RegimeGoverning Atrocities in Internal Conflicts’, 93 AJIL (1999), pp. 361–379.

70 Ibid., p. 364.


axiomatically linked to the anarchical structure of the system. Havingsaid this, neo-realism does not claim that states are the only actors onthe international scene, only the most important ones.71

Among othermajor contemporary theories of international relations,liberalism demonstrates the most open attitude to non-state actors.72

Liberalism regards individuals and private groups as the fundamentalactors in international relations. In contrast to realism, liberalism doesnot regard the state as a unitary actor, but as a conglomerate, whosepreferences are determined by domestic politics. One description ofliberalism is that the ‘black box of sovereignty becomes transparent,allowing examination of how and to what extent national governmentsrepresent individuals and groups operating in domestic and trans-national society’.73 Accordingly, the dominant group on the nationalplane will determine the state’s international behaviour. Moreover,private groups and individuals form networks and communities andcarry out activities across national borders. It should be noted, however,that according to the liberalist description, the ‘box’ is ‘transparent’,not open or perforated; the state is still regarded as the representativeof non-state actors on the international plane. Transnational liberalstake a step further and emphasise the breaking down of the domestic–international distinction. I shall return to this below.

Other international relations theories are also generally state-centred.Institutionalism, which focuses on the conditions for co-operationamong states seen as unitary actors, is of some general interest tointernational lawyers as (unlike realism) it supports the view that inter-national legal rules and institutions can have some effect on statebehaviour.74 Some scholars within regime theory do acknowledge sig-nificant roles for private actors.75 For instance, Robert Cox emphasisesthe role of classes and intellectuals.76 The theory of constructivism

71 Hollis and Smith, Explaining and Understanding International Relations, pp. 104 ff., KennethN. Waltz, Theory of International Politics, New York: McGraw-Hill, 1979, pp. 68–69.

72 Although strands within both institutionalism and constructivism also acknowledgeroles for non-state actors, see Abbott, ‘International Relations Theory’, pp. 365–367.

73 Anne-Marie Slaughter Burley, ‘International Law and International Relations Theory:A Dual Agenda’, 87 AJIL (1993), p. 207.

74 Anthony Clark Arend, Legal Rules and International Society, Oxford University Press, 1999,pp. 5, 119.

75 Slaughter, Tulumello and Wood, ‘International Law and International Relations’, p. 36and Abbott, ‘International Relations Theory’, p. 365.

76 Andreas Hasenclever, PeterMeyer and Volker Rittberger, Theories of International Regimes,Cambridge University Press, 1997, pp. 195 ff.


rejects the possibility that states and other actors have objectivelydetermined interests and emphasises social contexts; shared under-standings and norms constitute and define such basic notions as thestate, state sovereignty and national interests. Constructivists arguethat actors, their identities and their interests are shaped through socialinteraction on the basis of international norms and ideas. This theorydoes not deny a role to non-state actors in international relations, asit contends that foreign policy decisions are governed both by themeanings that states attribute to social objects and by their self-understandings.77

The theoretical developments that the twin disciplines of inter-national law and international relations have seenwithin their respectivefields are to a great extent parallel. For instance, realism has been one ofthe main theoretical approaches in international relations as well as ininternational law, and Hans Morgenthau is regarded as one of the mainrepresentatives of both disciplines, although ‘realism’ does not neces-sarily mean the same thing for each of them.78 Transnationalism is atheoretical approach to international relations, to the relationshipbetween public and private international and national law, as well asto international law on the borderland with international relations(‘transnational legal process’).79

The initial theoretical discussions on international law–internationalrelations were mainly concerned with emphasising the importance ofone discipline to the other and identifying possible common areas ofresearch.80 More recently, international lawyers have also begun to

77 Ibid., p. 188.78 See, e.g., Hollis and Smith, Explaining and Understanding International Relations, pp. 22 ff.

and Martti Koskenniemi, From Apology to Utopia: The Structure of International LegalArgument, Helsinki: Finnish Lawyers’ Publishing Co., 1989, pp. 167 ff. (althoughKoskenniemi labelsMorgenthau’s theories ‘Scepticism’). Kenneth Abbott, who is one ofthe proponents of international law–international relations theories, points out that‘realism’ in one discipline should not be confused with ‘realism’ in the other. Abbot,‘International Relations Theory’, p. 364, n. 24.

79 Hollis and Smith, Explaining and Understanding International Relations, pp. 32 ff., PhilipC. Jessup, Transnational Law, New Haven: Yale University Press, 1956 and Koh,‘Transnational Legal Process’, pp. 181–207. The term ‘transnational law’ is also used bySlaughter in ‘International Law and International Relations Theory’, p. 230, although ina different meaning than Jessup’s.

80 E. g. Kenneth W. Abbott, ‘Modern International Relations Theory: A Prospectus forInternational Lawyers’, 14 Yale Journal of International Law (1989), pp. 335–411, RobertJ. Beck et al. (eds.), International Rules: Approaches from International Law and InternationalRelations, Oxford University Press, 1996 and Slaughter Burley, ‘International Law andInternational Relations’, pp. 205–239.


elaborate theoretical and methodological tools that can make it possiblefor this discipline to incorporate international relations theory into theirwork on legal problems. The changes that are taking place in the inter-national arena as well as within the international legal system itself –mainly the weakening of state sovereignty in its different aspects – havebeen regarded as creating a situation where the legal conceptual frame-work does not provide sufficient tools of analysis. It is therefore naturalthat attempts are beingmade to create newanalytical toolswhichborrowideas and concepts from other disciplines.


One of the reasons for international lawyers to turn to internationalrelations theory for input has been the inability of traditional views oninternational law to deal with non-state actors. The liberalist Anne-Marie Slaughter uses the theories of international relations to seethrough the ‘black box’ of state sovereignty:

And above all, they will want a theoretical framework that takes account ofincreasing evidence of the importance and impact of so many factors excludedfrom the reigning model: individuals, corporations, nongovernmental organi-zations of every stripe.81

The question about actors in the international system as a wholeis answered in the following way:

The first Liberal assumption is that the primary actors in the internationalsystem are individuals and groups acting in domestic and transnational civilsociety . . . Second, Liberals assume that the ‘State’ interacts with these actors ina complex process of both representation and regulation.82

Slaughter suggests that law should be seen in its context. The modelof the international system that forms the basis of law should be com-pared with the models used by international relations theorists,because these scientists are concerned with the empirical validationof their models. If by such a comparison it is found that the primaryactors in the international system are not states, international law will

81 Slaughter, ‘International Law and International Relations Theory’, p. 227. Theemergence and increasing importance of non-state actors is also given as anexplanation for the need for an interdisciplinary model in Slaughter, Tulumello andWood, ‘International Law and International Relations Theory’, p. 370. Slaughterdescribes her own approach as ‘liberal theory’. Slaughter Burley, ‘International Law andInternational Relations Theory’, pp. 207, 227.

82 Slaughter, ‘International Law in a World of Liberal States’, 6 EJIL (1995), p. 508.


become irrelevant.83 Slaughter’s view is thus mainly normative, whileshe does not provide any clear answers as to who the current actors ofinternational law are.84 In another context, however, she has stated thatthe challenge of non-state actors is both an empirical and a conceptualone, and thatwe ‘need to redraw our conceptualmaps’ inways that helpus to solve a number of practical problems.85

The liberalist strand of International law–International relationstheory thus finds non-state actors relevant to law, and proposes atransnational legal system that can regulate the complex web of rela-tions between private actors and governmental actors. What it does notseem to do, however, is to assert that NGOs or other non-state actorshave status under the present international legal system.86 Other writerswithin the liberal strand of international law, such as Richard Falk andThomas Franck, also put emphasis on the role of civil society and thewaning of state sovereignty in a normative language, rather thaninvestigating legal possibilities for civil society under the internationallegal system as it stands today.87

Nevertheless, some international lawyers have formulated inter-disciplinary theories which also deal with the present status of non-stateactors and the issue of personality. Michael Byers has outlined a legaltheory that takes account of international relations by examining therelationship between law and power and by investigating to whatextent the legal paradigm is susceptible to power, with special focuson customary law.88 Byers seeks to explain how judges and lawyers

83 Ibid., p. 504.84 Slaughter observes that liberal international relations theories generally have been

characterised as normative rather than positive. Ibid., pp. 507–508.85 American Society of International Law, Proceedings of the 92nd Annual Meeting: The

Challenge of Non-State Actors, April 1–4, 1998, p. 36.86 Spiro warns international lawyers of leaning too heavily on international relations

theory as, even though the institutionalist, constructivist and liberal strains of inter-national relations theory have recognised that international law is of some importanceto international relations, these theories have ‘a hard time dealing with non-stateactors apart from their influence on states’. Even liberals, Spiro points out, find non-state actors relevant only insofar as they define state preferences. Peter J. Spiro,‘Globalization, International Law, and the Academy’, 32 New York University Journal ofInternational Law and Politics (2000), p. 582.

87 Richard A. Falk, Law in an Emerging Global Village: A Post-Westphalian Perspective, New York:Transnational Publishers, p. 33 ff.; ThomasM. Franck, ‘TheDemocratic Entitlement’, 29University of Richmond Law Review (1994), pp. 1–39 and ‘Community Based on Autonomy’,in Jonathan I. Charney et al., Politics, Values and Functions: Essays in Honour of Professor LouisHenkin, Dordrecht: Martinus Nijhoff, 1997, pp. 43–64.

88 Byers, Custom, Power and the Power of Rules.


determine the existence and content of individual legal rules, and therole of power in that process.

Byers notes that the term ‘personality’ refers to the capacity of anindividual or entity to hold rights and be subject to obligations within aparticular legal system.89 However, personality may also be a require-ment, or an entitlement. He recognises that different degrees of person-ality may exist – within a legal system some entities may be capable tohold more rights, obligations and capacities than others. Any entitywith full legal personality, however, is capable of holding as manyrights, etc. as the other entities. In other words, Byers distinguishes fulllegal personality from partial legal personality. As the topic of Byers’study is the relationship between power and international customarylaw, he focuses on discussing personality in that context. Byers observesthat in a system where the subjects of law are also its creators, havingfull legal personality also means that the entity is formally entitled toparticipate in the process of law creation to the same extent as any otherentity. He continues:

In the international legal system the principle of personality has the conse-quence that only those individuals or entities which have international legalpersonality are entitled to participate in the process of customary internationallaw, and only those individuals or entities which have full international legalpersonality are entitled to participate fully in that process.90

Byers’ perspective is thus not how power affects law, but rather how lawaffects the application of power. Accordingly, Byers views personality asa principle that qualifies power.

Byers notes that states are usually considered to be the only holders offull legal personality in international law.91 As regards NGOs, he recog-nises that they have a great deal of influence on the process of custom-ary international law. This influence has, however, been exercisedwithin the framework of the state-centric system. Byers continues:

Non-governmental organisations do not have international legal personal-ity and are therefore incapable of participating directly in the customaryprocess . . . States [have] allowed non-governmental organisations to partici-pate, to a limited degree, in certain bodies of some international organisations,such as the Sub-Commission of the United Nations Human Rights Commission.However, such participation should not lead one to conclude that non-govern-mental organisations play any sort of direct role in the customary process, for it

89 Ibid., p. 75. 90 Ibid. 91 Ibid.


is the behaviour of the States they seek to persuade which then develops,maintains or changes customary international law.92

The same perspective is adopted in relation to individuals and TNCs.Although TNCs are legal persons under national law and have a greatdeal of influence on states, they have – at best – only limited legalpersonality on the international plane. The absence of legal personalityrenders TNCs ‘largely incapable’ of participating in an independentcapacity in the formation of customary law. As for the individual,some human rights are erga omnes obligations to the individual and toother states, and some criminal responsibility entails responsibility ergaomnes. However, Byers concludes, ‘erga omnes rules represent only asmall portion of the rights and obligations which States have underinternational law in respect of individuals and other non-stateentities’.93

Anthony Clark Arend also turns to international relations theory inorder to explain law and its changing nature in a wider context, whileseeking to retain law’s special place and character. He asserts that ‘thereis a need to rehabilitate the status of international law within thepolitical science community’ and turns to international relationsbecause he thinks that ‘there is a need to provide a methodology ofinternational law that returns the discipline to an examination ofempirical data’. Arend suggests that ‘the changing nature of the inter-national system requires that certain fundamental principles of inter-national law be reexamined’.94 By emphasising the need to examineempirical data, Arend makes the point that too much scholarship ininternational law focuses on the value of different theoreticalapproaches, while what should be evaluated is ‘the behaviourof . . . international actors’.95 Arend mentions that the ‘new role ofnonstate actors may affect the nature of international law’, and asks‘what role these nonstate actors play in the constitutive process of legalrules’. Arend concludes that:

I believe that nonstate actors generally do not participate directly in the law-creating process. Nonstate actors, with some exceptions that will be discussedbelow, do not interact with states in an unmediated manner. Nonstate actorsmay be the origin of a proposed legal rule, but in order for the proposal tobecome law, it must be accepted by states.96

92 Ibid., p. 86. 93 Ibid., p. 79. 94 Arend, Legal Rules and International Society, p. 4.95 Ibid., p. 7. 96 Ibid., p. 43 (emphasis in original).


Arend thus uses international relations theory in a manner similar toByers: he looks into international relations theory in order to ‘return . . .

to an examination of empirical data’, but regards the traditional theoryof participation in the law-creating process as stable. States are still thecentral actors, while non-state actors can sometimes participatethrough states. However, Arend also admits that there might be excep-tions to this general rule, and refers to peoples and IGOs. The reasonthat these entities are mentioned is that they are sometimes capable ofconcluding international agreements and, in the case of IGOs, adoptingdecisions that are binding on member states.


Byers does not explain how personality is created, but sees close linksbetween recognition and personality. He doesmake a rather illustrativeremark about individuals, however:

Although the assimilation of rights is clearly something of a legal fiction whichaddresses the procedural incapacity of individuals and corporations to bringclaims in international law, it has the consequence that States are considered tohave legal obligations towards other States concerning the treatment of thoseother States’ nationals.97

In other words, Byers regards diplomatic protection as the overridingprinciple, rejecting the idea that states’ conferral of rights on indivi-duals through rules of international law affects the international legalpersonality of the individual. Rather, such rights are ‘a legal fiction’.Byers seems to be of the opinion that legal personality couldbe endowed on a non-state actor only by a clear rule of general inter-national law, or possibly by rights combined with procedural capacity.

As described above, Arend asserts that the fundamental aspect ofactors in the international system may be undergoing change andpoints to the ‘increase in the role played by a host of nonstate actors’,understood as including both intergovernmental and non-governmentalorganisations. Arend raises the questionwhether this developmentmayaffect the development and nature of international law:

As noted earlier, under traditional legal theory, international lawwas created bystates. If nonstate actors are entering into the international negotiating process

97 Byers, Custom, Power and the Power of Rules, p. 80.


in different ways, scholars may need to reassess their assumptions about howinternational law is constituted.98

For the purpose of considering how Arend answers the question of howa new actor of international law can be identified, it is of interest toexamine his proposedmethod for determining the existence of a rule ofinternational law and possible changes in international law.

Arend proposes a method for the determination of a legal rule basedon a few fundamental assumptions about international law, includingthat states are its primary actors, that they are essentially unitary andthat they are sovereign.99 In an attempt to combine positivism and theNew Haven approach, Arend proposes a test of ‘authority’ and ‘control’for the determination of whether states have consented to a particularrule. In the case of customary law, Arend explains, asking whether arule is authoritative and controlling is essentially the same thing asasking whether there is state practice and opinio juris. Tests of treatylaw and general principles are also suggested to focus entirely on statebehaviour and consent.100

Arend considers the expression ‘members of the international com-munity’, which is used by the New Haven approach for the incorpora-tion of a wider range of actors in the determination of authority, toovague. Thus, although Arend sets out with the assumption that there isan ‘increase in the role played by a host of nonstate actors’, and that thisdevelopment may affect the development and nature of internationallaw, he leaves these assumptions aside when he formulates his method.Aswasmentioned above, Arend holds that non-state actors ‘do not enterinto the process of creating general international law in an unmediatedfashion . . . Only state interaction can produce custom’.101 In otherwords, it is state practice and opinio juris that is of relevance for theidentification of a new rule of customary law, and it is therefore statesthat decide whether a new actor should become part of the inter-national legal system.102

Arend also explains that, if peoples and IGOs have a limited ability toenter the international law-making process, their authority to do so is

98 Arend, Legal Rules and International Society, p. 9. 99 Ibid., pp. 86–87.100 Ibid., pp. 87–90. 101 Ibid., p. 176.102 Arend suggests, however, that trends point towards a different kind of international

system, a system of a neo-medieval character, in which states would only be one actoramong many. In such a system, the process of creating customary international lawcould become much more complex. Ibid., pp. 177, 184–185.


derived from the consent of states, so these actors are not ‘truly indepen-dent’.103 In other words, even if a non-state actor concludes internationalagreements, it does not participate in the law-creating process in a truesense. As all non-state actors can be said to have derived their legalposition from state consent at some point in history, the consequenceof Arend’s theory seems to be that no other entities than states can everbecome independent participants in international law-making.

In conclusion, it can be observed that evenwhen international lawyersborrow from international relations theory, they seemunwilling to reachoutside the traditional paradigm of international law. This is perhapsespecially clear concerning the theories of Michael Byers, who seems touse a deductive method for examining the concept of legal personality,and Anthony Clark Arend, who starts out with observing the need toreconceptualise international law in order to deal with new actors, yetreturns to the state-centric paradigm in more concrete discussions.Slaughter’s model has a similar characteristic. Her fundamental assump-tion is that non-state actors are the main players on the internationalarena, but she does not make concrete suggestions as to how inter-national law can be adjusted in order to incorporate such a reality.

3.3 Conclusions

Introduction

An examination of the different theoretical views on the role and statusof non-state actors in international law is a rather unsatisfactory experi-ence; it appears to produce more questions than answers. The theore-tical approaches do not seem to attempt to engage in any dialogue: theidentity of each view is rather upheld by its opposition to other views.Moreover, these identities are sometimes emphasised by the elabora-tion of new conceptual worlds. It is difficult, sometimes even impossi-ble, to make any meaningful comparison as to how the same concreteproblem is or would be tackled by the different approaches.104

Koskenniemi asserts that:

103 Arend, Legal Rules and International Society, p. 44.104 This seems to be confirmed by the AJIL Symposium on Method, which put the same

concrete question to a number of writers of different methods. One of the participantsdeclined to answer the question, and the answers received were so different in scopeand objective that some are difficult to compare (which is itself an interesting result).93 AJIL (1999), pp. 291–423.


theoretical discourse has repeatedly ended up in a series of opposing positionswithout finding a way to decide between or overcome them. ‘Naturalism’ isconstantly opposed with ‘positivism’, ‘idealism’ is opposed with ‘realism’,‘rules’ with ‘processes’ and so on. Whichever ‘theoretical’ position one hasattempted to establish, it has seemed both vulnerable to valid criticisms froma contrasting position andwithout determining consequence of howone shouldundertake one’s doctrinal task.105

These problems have been rather evident above. However, it should beadmitted that I have sought conflict by contrasting one view with theother rather than trying to find any synthesis. The texts described havebeen selected because of their clear support for one model or the other.The rule and process approaches represent the ends of a scale of possi-ble views, where the majority of international lawyers would probablysupport amixture of these theories and occupy a position somewhere inthemiddle. The international law–international relations theory, for itspart, cannot really be placed on such a scale, as it consists of ratherdiverse views with the only common characteristic that they seek toredefine legal concepts by borrowing instruments from internationalrelations theory.

I shall not attempt to construct a new theory with new concepts andlanguage in opposition to the theories already described. On the con-trary, I will attempt to use them all. In spite of – and because of – thecontradictions that exist between different theoretical strands, I believethat it is useful to try to identify the assumptions that are shared bythem. The aim is not to construct ameta-theory, but rather aminimalistmodel for the purpose of conducting the present study. This modelidentifies some very basic assumptions that are or could be shared bymost theories, and conducts the investigation of the concrete problemin focus of this study – the question of the legal status of NGOs ininternational law – on the basis of those ideas. There seem to be foursuch basic assumptions that represent a smallest common denominatorfor the different legal theories. These are (1) that states are the dominantactors of international law, (2) that the international political role ofnon-state actors is increasing and that international law will somehow

105 Koskenniemi, ‘FromApology to Utopia’, p. xv. The explanation is ‘That there is no realdiscourse going on within legal argument at all but only a patterned exchange ofarguments relates to theway the Rule of Law leads lawyers to deal with concrete socialdisputes in a formal and neutral way. Discourse points constantly away from the mate-rial choice which the problem for any non-lawyer would immediately be about.’ Ibid.,p. 456 (emphasis in original).


need to deal with this situation, (3) that states are able to confer legalstatus on actors on the international plane and (4) that treaties andother generally recognised sources can provide relevant informationon the existence of international legal rules, although some theoriesprefer a wider notion of sources.

States as the dominant actors of international law

For the rule-oriented lawyer, states are both the dominant (or only) law-makers and the primary subjects of international law. Policy-orientedjurisprudence, for its part, asserts that while the individual is the ulti-mate actor of world policy process, states are the dominant actors. Thisis the case within the ‘global process of effective power’, where thenation-state stands out as the major participant, although the power ofmany ‘functional groups’ is increasing. Moreover, the officials of statesare the most influential decision-makers within the ‘global process ofauthoritative decision’ that structures law and policy. As regards themajor actors for the application of law, Higgins observes that:‘International law is, for the time being, still primarily of application tostates.’106 New ILP focuses primarily on states, and although transna-tional legal process emphasises how non-state actors influence thecreation and application of law, the point is still that such actors influ-ence the behaviour of states. The international law–internationalrelations theories described above clearly present states as the mainactors. Although liberalism breaks down sovereignty and describesprivate individuals and groups as the main actors, this is done more asan ideal. Even liberalism does not assert that private actors are domi-nant today.

The increasing role of non-state actors

Without going into detail about the different theoretical variations, itcan be observed that all the writers referred to recognise the increasingpolitical role of non-state actors. This is not surprising since such adevelopment is clearly evidenced by facts such as statistical data.107 Itis perhaps more interesting to note that most writers also appear torecognise a need for the legal system somehow to relate to thesechanges. For the process approach, one of its rationales is the need tobroaden the scope of law in order to include a wider range of actors.Such a need to adapt the scope of law is recognised by other theories

106 Higgins, Problems and Process, p. 39 (emphasis in original). 107 See section 1.2.


as well. Anthony Clark Arend, who outlines a theory on the borderbetween international law and international relations, suggests that:‘If nonstate actors are entering into the international negotiating pro-cess in different ways, scholars may need to reassess their assumptionsabout how international law is constituted.’108 In their article aboutpositivism, Bruno Simma and Andreas Paulus observe that other actorsthan states (IGOs, NGOs, etc.) are growing in importance, and if ‘normperception in the international sphere now focuses on the will of statesless than previously, the sources of law, and the interpretative tools tounderstand them, will also have to change’.109

States and the conferral of international legal status

For rule-oriented lawyers, it is clear that states create international lawand change it as they like. It follows that states can confer legal status onnon-state actors and even create new international legal persons, even ifsuch personalities may be regarded as ‘secondary’ in relation to states.The assumption that states can confer legal status on non-state actors isalso supported by case-law from the Permanent Court of InternationalJustice (PCIJ) and the ICJ, notably the Danzig Railway Officials case and theReparation for Injuries case, as well as the generally recognised positionof non-state entities such as the ICRC and the Order of Malta.110 Asregards the process approach, the question of whether states can conferlegal status on non-state actors can be answered only hypothetically, asthe issue is not phrased in such a way by this theory. It is clear, however,that Rosalyn Higgins, who is both a process-oriented scholar and a Judgeof the ICJ, is of the view that there is no inherent reason why theindividual should not be able to invoke international law, and shesupports the view that ‘the individual does have certain rights owed tohim under international law (and not just to his state)’.111 Moreover, asthe New Haven school regards state officials as the most influentialdecision-makers, it seems logical that states can strengthen the legalstatus of non-state actors. The fairly traditional method used by MaryEllen O’Connell for solving international legal problems also seems tosupport the view that states are free to create new legal subjects. Finally,

108 Arend, Legal Rules and International Society, pp. 7–9.109 Simma and Paulus, ‘The Responsibility for Human Rights Abuses in Internal Conflicts:

A Positivist View’, p. 306.110 See chapter 2. 111 Higgins, Problems and Process, p. 53.


international law–international relations theory clearly accepts statesas creators of international law.

Generally accepted sources

The ‘extra-galactic’ panorama of the processes of law- and policy-makingthat is described by the process orientation and the internal view ofthe rule orientation are entirely different perspectives with a distinctpurpose. Therefore, they do not ask the same questions, and in part, donot use the same sources. As the objective of the process approach isto broaden the lawyer’s traditional perspective, there is no point for itto discuss the validity of treaty law or recognised customary law. Forthe rule-oriented lawyer, who works inside the legal system with con-crete problems arising from the application of its rules, one importantstep is to identify and clarify existing rules. The different perspectiveson international law and its sources are thus to a great extent theinstruments of different professional roles. It might be assumed thatfew process-oriented lawyers would reject existing treaty law asirrelevant if they were put in the position of a judge. Their point israther that treaty law represents only a small part of the picture, andthat it is vague in its nature. Neither does international law–inter-national relations theory deny the legal validity or relevance of treaties.For rule-oriented lawyers, on the other hand, rules that can be identifiedthrough the use of the generally accepted sources constitute the wholepicture. The existence and identification of rules of customary lawrepresent a classical topic of dispute between different strandsof international legal theories andmethods. This means that provisionsin treaty law that expressly relate to NGOs represent one part of a‘smallest common denominator’ when it comes to determining theirlegal status. Likewise, case-lawwhich interprets treaty provision shouldbe a source which can be accepted by different ‘schools’ for the presenttype of study.

Resolutions of IGOs have often been the topic of disagreement amongproponents of different theoretical models. The value of such resolu-tions as state practice or evidence of opinio juris in relation to emergingnorms of customary international law is a much-discussed issue. Mostresolutions examined in this study are, however, of a different kind, asthey establish frameworks for the relations of IGOs with NGOs.Resolutions and decisions concerning consultative status for NGOswith different IGOs or the rules of procedure of their different organs,for example, belong to the internal law of international institutions and


generally bind the organ which has adopted it, the lower organs of theorganisation, as well as states when they act in their capacity as mem-bers of the organisation.112 Such resolutions can therefore hardly bedisputed as relevant material for a study on the status of NGOs.

In sum, the material used in this study for examining the interna-tional legal status of NGOs includes treaties, case-law of internationaland regional courts and quasi-judicial bodies, resolutions and declara-tions of IGOs, the practices of IGOs as regards their relations with NGOsand doctrinal works. In addition, agreements concluded between statesand IGOs on the one hand and NGOs on the other will be examined.Although the rule orientation would probably not regard such agree-ments as relevant for the issue of international legal personality, itseems likely that they would be accepted as information on the (inter-national) legal status of NGOs.

One exception from the use of generally accepted sources of inter-national law will, however, be made in order to discuss the issue of theinfluence of NGOs on the development of international law.While thisissue runs through most of the examination of the legal status ofNGOs, as these organisations use different rules as platforms forasserting an influence, it is often held that NGOs also influence inter-national law by asserting pressure directly on legal decision-makers. Itis clear that the influence of NGOs on international law-making atdiplomatic conferences and similar events would be classified asextra-legal, and therefore irrelevant, by the classic rule approach.At most, this theory could admit that NGOs de facto put pressure onstates, which may affect the outcome of decision-making processes.Information on that type of pressure does not fit into the ‘lowestcommon denominator’ model outlined above, and so there is no spe-cific chapter on this issue.113

Nevertheless, I have found it of interest to examine whether, in theview of the ‘law-makers’, NGOs can in fact assert an influence withinthe framework of their participation in international meetings andconferences. Such an investigation can provide information as towhether provisions about NGO participation are any more than emptyletters. It is also of interest for a discussion de lege ferenda to look at who

112 Schermers and Blokker, International Institutional Law, pp. 741–746; Philippe Sands andPierre Klein, Bowett’s Law of International Institutions, 5th edn., London: Sweet &Maxwell,2001, p. 441.

113 Several other studies on the influence of NGOs on the development of internationallaw have been made. For references, see section 1.1.


the actors behind international law really are. If non-state actors form-ally have no influence on the voting of states to an international treaty,while in reality states change their positions through pressure fromNGOs, transnational corporations or other lobby groups, it might haveto be considered whether such influence should be taken account of orregulated in some way.

The example of the participation and influence of NGOs in the crea-tion of the Statute of the International Criminal Court has been chosenfor the examination of the influence of NGOs on international law-making at international conferences.114 I shall also briefly touch upondifferent instances of NGO pressure throughout the discussion.While itis mentioned in chapter 5 on international tribunals that NGOs have nolocus standi before the ICJ, for instance, it is also shown how NGOsasserted strong pressure on the WHO to request an advisory opinionon the legality of the use of nuclear weapons.115

An inductive method

On the basis of the ‘minimalist’ model outlined above, a method, orapproach, to international legal concepts and material should be con-sidered. In carrying out the work of identifying rules which have to dowith the legal status of NGOs, I shall not use any a priori notions of the‘real’ nature of international law or of international legal personality.This can be described as an inductive method, or approach, to inter-national law, in the sense that the actual provisions, relations andpractices on the ‘ground’ is law itself and that, at least sometimes,general rules can be induced from many separate rules. Some (not all)rule-oriented scholars have a tendency to make deductions from the‘nature’ of international law and from the classical concept of inter-national legal personality in order to find out which parts of inter-national law are relevant for international legal status. Provisions thatgrant consultative status for NGOs at an intergovernmental organisa-tion, for instance, have been rejected as irrelevant for the question oflegal personality.116 Such a method seems to indicate that there is

114 Section 8.6. 115 Section 5.2.116 Rechenberg observes: ‘if anNGO is granted consultative or observer status by an IGO, it

simultaneously acquires a certain international legal status (albeit not that of a subjectof international law)’. Hermann H.-K. Rechenberg, ‘Non-Governmental Organizations’,EPIL, 3, Amsterdam: North-Holland, 1997, p. 617. It should be observed thatRechenberg thus recognises that such resolutions provide information on the legalstatus of NGOs.


some basic rule of international law which determines the content ofinternational legal personality. A sort of ideal picture of legal person-ality is used as the standard by which actors are to be measured, and ifthey fall short of that standard they are ‘objects’ – or, legally speaking,non-existent. But, as we have seen, there is no general rule whichidentifies the subjects of international law, and the views in doctrineare varied.

Furthermore, the traditional dichotomies which characterise inter-national law cannot be respected as absolute boundaries within theframework of this study. The definition of international law as ‘public’in contrast with ‘private’ international law renders any substantiallegal status for private actors an anomaly. In my opinion, actualprovisions and practices that explicitly relate to NGOs should beexamined, irrespective of how they would be classified in terms of‘public’–‘private’ or ‘subject’–‘object’. The argument about whom orwhat is a subject and whom or what is an object in international lawhas been going on for at least a century, and there does not seem to beany way out of that debate. It is not unlikely that we shall have toaccept an increasingly complex web of actors in the future withdifferent legal status, for which the classical categories will fallshort. In order to find out what the relations in such a system are,we shall need to examine them without the use of pre-definedconcepts.

In line with what has been said above, I shall not use the conceptsof ‘international legal personality’ and ‘subject of international law’.The explanations of these terms are varied, and some scholars rejectthem altogether. For others, the terms in themselves determinewhat material is relevant for analysing the international legal posi-tion of a particular actor. The classical concepts are thus not helpful indescribing the position of NGOs in international law. Instead, themore neutral term ‘legal status’ will be used. ‘Legal status’ is hereunderstood as a broad concept, which embraces all kinds of provi-sions and practices which explicitly take account of NGOs or whichcan be used by these organisations for acting in the international legalcontext, irrespective of which field of international law the materialbelongs to.

At the same time, it should be admitted that the structure ofthe study is traditional in the sense that it is systematised intorights, obligations and different categories of legal capacities, such asprocedural capacity and the capacity to conclude agreements under


international law.117 This structure may be helpful for those whowould like to use the material assembled in the legal survey to mea-sure NGOs against the concepts of ‘subject of international law’ and‘international legal personality’. In the present study, however, nosuch attempts will be made.

Finally, it should be explained that there is a vast amount of inter-national legal or quasi-legal material relating to NGOs, and it has notbeen possible to cover it all within the framework of the study. Myprimary aim has been to concentrate on instruments which relate toNGOs explicitly and in a directmanner. As a consequence, human rightslaw has come to dominate the study. I have also chosen to focus on theUnited Nations as the most important IGO. As NGOs are importantactors before several UN human rights bodies, this has also led tosome concentration on human rights law.

117 As a consequence, there is repetition, mainly as regards the regional human rightssystems, which are discussed in chapters 4–6. This was difficult to avoid, as the topic ofthe study is not the regional systems as such, but the different components of legalstatus which NGOs have before these bodies.


PART II * LEGAL AND EMPIRICAL SURVEY

4 Rights and obligations

4.1 Theoretical background

The concept of ‘rights’

‘Right’ and ‘obligation’ are not unproblematic as concepts of inter-national law. Because of the interconnectedness of the issue of interna-tional rights and obligations pertaining to non-state actorswith the issueof the subjects of international law, it is still somewhat controversial toassert that individuals – or, indeed, NGOs – can be bearers of rights orobligations directly under the international legal system. As has beentouched upon earlier in this book, there is substantial debate in interna-tional legal theory as to the meaning and implications of the concept of‘right’ as related to non-state actors.1 Although there is neither roomnorneed within the framework of the present study for a lengthy descrip-tion of the different theories and positions put forward in this discus-sion, a brief analysis of the concept is called for before it is examined towhat extent international law does in fact confer rights on NGOs.

A useful starting-point for discussions on the legal rights concept isProfessorWesley Hohfeld’s theory, which was first put forward in 1913.In his book, Hohfeld separated eight different aspects of ‘right’ groupedinto four pairs, where each termwas defined by its correlative opposite.The two pairs most relevant for the purposes of analysing the positionof private entities in international law are right (claim)–duty and power–liability.2 While admitting that legal relations are sui generis, Hohfeldasserted that his scheme included all possible variations of legal

1 Section 3.2.2 The other pairs are privilege–no-right and immunity–disability, Wesley NewcombHohfeld, Fundamental Legal Conceptions as Applied in Legal Reasoning, New Haven: YaleUniversity Press, 1919, p. 36. Hohfeld’s classification is, however, more elaborate;

121

relations. At the same time, it should benoted thatHohfeld concentratedon private law, his examples being taken from the lawof contracts, torts,property, etc. It should also be observed that themodel was not intendedas a method of determining whether rights, powers or immunitiesexisted or should exist; it ‘solves no problem of social justice or juristicpolicy, but it does much to define and clarify the issue’, as was stated inthe Foreword to Hohfeld’s book.3

Two observations should be made about Hohfeld’s model in thiscontext. First, he separated a wider understanding of right, whichincluded all possible aspects of legal relations, from right ‘in the strict-est sense’. Secondly, the concept of right ‘stricto sensu’ was separatedfrom the power to enforce the right. Using a terminology similar toHohfeld’s, the question examined in this chapter is not ‘rights’ in thewide, but in the strict sense. What will be studied here is thus notwhether NGOs have the ‘right’ to institute proceedings before interna-tional courts or the ‘right’ to intervene in such proceedings – i.e. havedifferent capacities under international law – but whether states haveduties under international law to treat NGOs in a specificmanner on thedomestic plane, corresponding to rights held by NGOs. Such interna-tional rules are mainly found within the fields of international humanrights law and labour law. It is a different issue whether a right presup-poses the capacity to enforce the right in order to be considered a right‘in the strictest sense’. That question will be discussed separately.

According to Hohfeld, duty is the ‘invariable correlative’ of right ‘inthe strictest sense’, which means that a right ‘stricto sensu’ cannot existwithout a correlative duty. A’s right is thus (defined by) B’s duty.4 Asimilar thought has been expressed by Joseph Raz in modern rightstheory; he states that ‘by definition rights are nothing but grounds ofduties’.5 Neil MacCormick, for his part, prefers a theory which asserts

he distinguishes ‘jural correlatives’ from ‘jural opposites’ and relations in personam fromrelations in rem, see pp. 65 ff.

3 Arthur L. Corbin, in Hohfeld, Fundamental Legal Conceptions, p. xi.4 Hohfeld, Fundamental Legal Conceptions, pp. 38–39.5 Joseph Raz, The Morality of Freedom, Oxford University Press, 1986, p. 176. See also ‘LegalRights’, 4 Oxford Journal of Legal Studies (1984), p. 5: ‘To say that a person has a right is to saythat an interest of his is sufficient ground for holding another to be subject to a duty.’Nino, however, denies an absolute relationship between rights and duties: ‘Intuitively,rights serve as basis for duties because they have a wider scope. For example, they mayjustify acts of self-defencewhich violate other rights. Theoretically, there could be rightswhich do not provide a basis for actual or potential duties. This seems to lead to animpasse, since, apparently, there is no meaning of ‘‘right’’ which does not imply

122 LEGAL AND EMP IR ICAL SURVEY

the primacy of rights – rights are grounds for identifying duties – butstill recognises the relationship.6 Within the field of international law,Henkin states that: ‘According to the common view, one has a legalright only against some other; to say one has a legal right againstanother is to say that one has a valid legal claim upon him and thatthe addressee has a corresponding legal obligation.’7 In spite of theirdifferences, all these views admit the necessary relationship betweenrights and duties, and I will adhere to this position for the purpose ofthe study.

Non-state rights-holders on the international plane

Introduction

Because of the interrelationship between national and internationallaw, the question of international rights pertaining to NGOs and othernon-state actors raises special difficulties. As has been mentioned ear-lier in this study, the Permanent Court of International Justice found in1928 in the Danzig Railway Officials Case that individuals can hold rightsunder an international treaty if the intention of the contracting states isto create such rights.8 The same position was expressed in the LaGrand

case in 2001.9 Yet, it is still often questioned whether human rights are‘real’ rights under international law. Malanczuk, in Akehurst’s Modern

Introduction to International Law, observes that:

Very many rules of international law exist for the benefit of individuals andcompanies, but that does not necessarily mean that the rules create rights forthe individual and companies, any more than municipal rules prohibitingcruelty to animals confer rights on animals. Even when a treaty expressly says

obligations.’ Nino then elaborates a definition of ‘rights’ which, instead of duties,includes a criterion of it being ‘wrong’ to deprive a person of a certain situation (right),Carlos Santiago Nino, The Ethics of Human Rights, Oxford: Clarendon Press, 1991,pp. 30–34. It should be noted, however, that the ‘right’ to act in self-defence cannot beunderstood as a ‘right stricto sensu’ but rather as an ‘immunity’ according to Hohfeld’sscheme. Hohfeld’s notion of ‘right stricto sensu’ is rejected by Nino as being too narrow.

6 Neil MacCormick, Legal Right and Social Democracy, Oxford: Clarendon Press, 1982, p. 144.7 Louis Henkin, The Age of Rights, New York: Columbia University Press, 1990, p. 34.8 Section 2.2, and Advisory Opinion on the Jurisdiction of the Courts of Danzig (1928) PCIJ Series BNo. 15, pp. 17–18. For other similar examples, see Sir Robert Jennings and Sir ArthurWatts (eds.), Oppenheim’s International Law, I, 9th edn., London: Longman, 1996, p. 847.

9 LaGrand case (Germany v. USA), 27 June 2001, accessible onlinewww.icj-cij.org/icjwww/idocket/igus/igusframe.htm, as of 4 November 2004. See alsoJames Crawford, ‘The ILC’s Articles on Responsibility of States for InternationallyWrongful Acts: A Retrospect’, 96 AJIL (2002), pp. 887–888.

R IGHTS AND OBL IGAT IONS 123

that individuals and companies shall enjoy certain rights, one has to read thetreaty very carefully to ascertain whether the rights exist directly under inter-national law, or whether the states party to the treaty are merely under anobligation to grant municipal law rights to the individuals or companies con-cerned. The international rules concerning the protection of human rights are agood example of the difficulty of deciding whether individuals derive rightsfrom international law, or whether they merely derive benefits.10

In Oppenheim’s International Law, international rights are linked to thecapacity to enforce the rights:

Although treaties may speak of the rights of individuals as if they were derivedfrom the treaties themselves, this, as a rule, is not normally the position. Suchtreaties, rather than creating the rights, impose the duty upon the contractingstates to establish them in their national laws . . . States can, however, andoccasionally do, confer upon individuals, whether their own subjects or aliens,international rights stricto sensu, i.e. rights which they acquire without theintervention of municipal legislation and which they can enforce in their ownname before international tribunals.11

Examples of stricto sensu rights referred to in this context are, inter alia,the rights recognised in the Danzig Railway Officials case and the rightsmonitored by the European Court of Human Rights.

According to Harris, the access to an international legal remedy is ofimportance for assessing whether an international legal rule creates aright for the individual. Harris observes, however, that such access isstill an exception to the ordinary rule:

For the most part, however, the individual remains an object, not a subject, ofinternational law whose most important characteristic for international lawpurposes is his nationality. It is this, for example that determines which state(his national state) may protect him against the extravagances of another.12

Thus, while Harris admits that the individual may acquire internationallegal rights, he refers to diplomatic protection to support the view thatthe individual normally lacks such rights. Diplomatic protection arisesin cases of dispute between a host state and a foreign national whoserights have been denied and who has as a result suffered injuries. If theforeign national is unable to internationalise the dispute and take it out

10 Peter Malanczuk, Akehurst’s Modern Introduction to International Law, 7th edn., London:Routledge, 1997, p. 100.

11 Oppenheim’s International Law, I, p. 847. See also D. J. Harris, Cases and Materials onInternational Law, 5th edn., London: Sweet & Maxwell, 1998, p. 142.

12 Harris, Cases and Materials, p. 142.


of the sphere of local law, the state of nationality can, at its discretion,espouse the individual’s claim and invoke the responsibility of the hoststate.13 As only states may invoke state responsibility, it can be arguedthat they are the only proper subjects of international legal rights.14

Although other writers hold that individuals are indeed holders ofinternational legal rights – irrespective of whether the rights-holder hasaccess to an international enforcement mechanism – the scepticism ofwriters such as Malanczuk and Harris needs consideration before pos-sible ‘NGO rights’ are surveyed.15 Should some, or all, of the body ofhuman rights law not be regarded as rights stricto sensu, but merelybenefits, these provisions would hardly be relevant for the question ofinternational legal personality at all.

According to Hohfeld’s logic, the existence of a legal right presup-poses a corresponding legal duty directed towards the rights-holder. Theproblem as regards the rights of the individual is whether the obligationof contracting states to comply with the agreement entered into isdirected towards the individuals whom the provisions are intended toprotect or towards other states. Louis Henkin addresses the crucial pointas follows:

According to a common view, one has a legal right only against some other; tosay one has a legal right against another is to say that one has a valid legal claimupon him and that the addressee has a corresponding obligation in the relevant

13 A/53/10, Report of the International Law Commission on the Work of its Fiftieth Session, 1998,para. 63.

14 See also the Barcelona Traction case, in which the ICJ stated that ‘a State may exercisediplomatic protection bywhatevermeans and towhatever extent it thinks fit, for it is itsown right that the State is asserting’. Barcelona Traction, Light and Power Company, Limited,ICJ Reports, 1970, p. 44 (emphasis added). The Court’s statement does, however, notexclude the possibility that there may be a parallel right on the part of the individualtowards the violating state. See also Crawford, who explains that Article 33 of the ILC’sDraft Articles on State Responsibility takes no position on the question whether therights bestowed in a treaty on a private entity are held by that entity directly or by thestate, ‘The ILC’s Articles on Responsibility of States for Internationally Wrongful Acts’,pp. 887–888.

15 See, e.g., Malcolm N. Shaw, International Law, 4th edn., Cambridge University Press,1997, p. 190: ‘this vast array of practice with regard to the international rights andduties of the individual under customary and treaty law clearly demonstrates thatindividuals are subjects of international law’. Shearer states in Starke’s InternationalLaw that: ‘Irrespective of municipal legislative implementation of the rules thereincontained, there is no question that, however exceptionally, many modern treaties dobestow rights or impose duties upon individuals.’ Nevertheless, he calls these norms‘exceptional instances’, I. A. Shearer, Starke’s International Law, 11th edn., London:Butterworths, 1994, pp. 53, 61.


legal system. The instruments are designated as dealing with the rights ofindividuals, and there is reference to individual rights in every article. But thestate’s obligation and the individual’s right are not necessarily correlative, oreven in the same legal order.16

Henkin’s observation about the language of international agreementsseems sympathetic. It cannot be completely ignored that the makers ofinternational law, i.e. states, have in fact chosen the term ‘right’ for thelegal relationship they have intended to create.17 Still, the problem ofcorrelation between right and duty remains unsolved if the individualright is seen as belonging solely within the national legal domain.

For the sake of clarity, four potential combinations of legal relation-ships involved in human rights law can be distinguished:

(a) The individual is a holder of human rights under international law,and states’ corresponding obligations under international law areaddressed only towards the individual rights-holders. The individualis thus a bearer of international legal rights stricto sensu.

(b) The individual is the beneficiary of international human rights law,while the state’s international legal duty to comply with these rules isdirected only towards other states. The state may be obliged towardsthe individual under national law to respect the right, but thisquestion is outside the scope of international law.

(c) The individual is a holder of a right stricto sensu (irrespective of whethershe has the capacity to enforce the right), the state thus being under aninternational obligation towards the individual, while at the sametime the state has an international duty towards other states, ortowards the international community as a whole.18

16 Henkin, The Age of Rights, p. 34. Hohfeld writes: ‘If X has a right against Y that he shallstay off the former’s land, the correlative (and equivalent) is that Y is under a dutytoward X to stay off the place.’ Hohfeld, Fundamental Legal Conceptions, p. 38.

17 See also Cassese, who observes that: ‘It would indeed be contradictory or even illogicalto refer, in an international treaty, to a ‘‘right’’ of peoples and then actually tomean thatwhat is granted is not a legal entitlement proper but simply an indirect benefit accruingto peoples because of the interplay of rights and obligations between ContractingStates.’ Antonio Cassesse, Self-Determination of Peoples: A Legal Reappraisal, CambridgeUniversity Press, 1995, pp. 143–144.

18 The ILC has discussed whether the definition of an ‘injured state’ in Draft Article 43 onstate responsibility should be changed from a state which is entitled to invoke theresponsibility of another state when the obligation is owed to ‘the internationalcommunity as a whole’ to ‘the international community of States as a whole’. TheRapporteur, James Crawford, did not agree that any change was necessary, and statedthat ‘the international community includes entities in addition to States; for examplethe European Union, the International Committee of the Red Cross, the United Nationsitself’. A/CN.4/517, Fourth Report on State Responsibility, 31 March 2000, para. 36.


(d) International human rights law does not normally create rights strictosensu on the part of individuals, as states’ obligations are directedtowards other states, which are the only actors that can enforceinternational legal rights. However, when the individual has thecapacity to enforce the right, a duty on the part of the state towards theindividual has been created.

The combination of legal relationships described under (a) cannotprovide the full explanation, as it disregards state responsibility forbreaches of human rights law. Malanczuk seems to adopt view (d), orpossibly (b), while Harris adheres to (d).19 Both thus deny the possibilitythat the individual may be a holder of rights stricto sensu even withoutaccess to an enforcement mechanism.

As with many questions relating to international legal personality, ageneral discussion on the subject of individual rights under interna-tional law seems to provide few answers. It is therefore necessary toexamine the particular instruments and contexts in which rights orbenefits have been created.

The intention of the parties

The starting point for such an investigation was given by the PCIJ inthe Danzig Railway Officials case already mentioned. The case concernedan international agreement (the so-called Beamtenabkommen) whichregulated the conditions of employment for the Danzig railway offi-cials working on the Polish railway system. Poland argued that theBeamtenabkommen, being an international agreement, created rightsand obligations between the contracting parties only, and that Polandwas responsible for breaches of the agreement only in relation tothe Free City of Danzig. Danzig contended, for its part, that theBeamtenabkommen, though an international agreement in form, wasintended by the contracting parties to regulate the legal relationshipbetween the Railway Administration and its officials, and that it was the

19 Malanzcuk, however, later demonstrates that he supports view (d), not (b), see below.See also Kelsen, who made the distinction between tribunals whose jurisdiction statesare obliged to recognise and those to which states adhere as contracting parties. Kelsenalso added the element of enforcement action, which is the prerogative of states, not ofinternational tribunals. He concluded that ‘in the absence of any provision in the treatyconferring a procedural capacity upon individuals – endowing individuals with the‘‘faculty of independent action to enforce these rights’’ – they are not the subjects ofinternational rights’. Hans Kelsen, Principles of International Law, 2nd edn., New York:Holt, Rinehart & Winston, 1966, pp. 231–234.


substance rather than the form which ought to determine its juridicalcharacter. The Court found that:

it cannot be disputed that the very object of an international agreement, accord-ing to the intention of the contracting Parties,may be the adoption by the Partiesof some definite rules creating individual rights and obligations and enforceableby the national courts . . . The intention of the Parties . . . is decisive.20

According to the Court, it is thus the intention of the parties whichshould be at the centre of attention. This argument seems to be well inline with Hohfeld’s rights analysis; if the parties intended to createrights stricto sensu theywere also willing to undertake the correspondingduty. The issue whether there are enforcement mechanisms accessiblefor the rights-holder is another, or related but secondary, question.

But how is the intention of theparties to be ascertained? Below itwill bediscussed which factors may provide evidence of an intention on the partof treaty-makers to create international legal rights. These factors willlater be used for identifying rights held by NGOs under international law.

The terms of the treaty

In the Danzig Railway Officials case, the PCIJ examined the question ofhow itwas to establish an intention of the parties to create internationalrights:

That there is such an intention in the present case can be established by referenceto the terms of the Beamtenabkommen. The fact that the various provisionswereputin the formof an Abkommen is corroborative, but not conclusive evidence as to thecharacter and legal effects of the instrument. The intentionof the Parties,which isto be ascertained from the contents of the Agreement, taking into considerationthe manner in which the Agreement has been applied, is decisive. This principleof interpretation should be applied by the Court in the present case.21

The contents of an international agreement may include several typesof provisions which can provide guidance as to the nature of the legalrelationship(s) created by it. First, there is often a specific provisiondescribing the legal obligation of the contracting parties. Naturally,such provisions are of great interest as evidence of a legal obligationtowards the rights-holder. One example of such a provision is Article 2of the ICCPR:

20 Advisory Opinion on the Jurisdiction of the Courts of Danzig (1928) PCIJ Series B No. 15,pp. 17–18.

21 Ibid.


Each State Party to the present Covenant undertakes to respect and to ensure toall individuals within its territory and subject to its jurisdiction the rightsrecognized in the present Covenant.

The corresponding article of the International Covenant on Economic,Social and Cultural Rights (ICESCR) gives a rather different message asregards state obligation:

Each State Party to the present Covenant undertakes to take steps, individuallyand through international assistance and co-operation, especially economic andtechnical, to the maximum of its available resources, with a view to achievingprogressively the full realization of the rights recognized in the presentCovenant.

The specificity of the rights provision itself is also important evidence ofan intention to create a legal obligation. It is reasonable to assume that avery detailed provision is intended to create a clear obligation directly,while more programmatic rules may create a more diffuse or dynamicresponsibility, which might change with time and circumstances.

However, the treaty provisions on legal obligation or the specificity ofrights may not always provide any clear guidance as to whether theparties have the intention to create rights. Other provisions or factorsmay come into play, such as whether the treaty is generally regarded asself-executing or directly applicable. While national legislation is leftaside here, it can be asserted that the fact that a treaty was intended toestablish rights which are directly enforceable in domestic courts pro-vides evidence of an international legal obligation towards the rights-holders. The distinction elaborated by Thomas Buergenthal betweenself-executing treaties and what he calls ‘directly applicable treaties’might be of some interest in this regard.22 Buergenthal’s point is that,while the question whether a given treaty is self-executing or not is adomestic law question, some treaties are concluded for the purpose ofcreating directly enforceable rights, i.e. directly applicable treaties.23

The latter, according to Buergenthal, put a stronger obligation on statesas regards implementation on the national plane and to allow indivi-duals to invoke the treaty provisions in national courts. As a ‘directlyapplicable’ treaty, in the sense explained by Buergenthal, is intended tocreate directly enforceable rights, one may assume that it also creates a

22 Thomas Buergenthal, ‘Self-Executing and Non-Self-Executing Treaties in National andInternational Law’, 235 Hague Recueil (1992), pp. 313–400.

23 Ibid., p. 322.


clearer legal obligation towards the individual on the international plane.On the other hand, the fact that a treaty was not intended to be ‘directlyapplicable’ cannot constitute conclusive evidence that there is no legalobligation on the part of contracting states towards the rights-holder.

Rights and legal remedies

The existence of legal rights has often been seen as closely connectedwith the questionwhether the rights-holder has access to a legal remedyin the case of a violation of the right. As already indicated, Malanczukputs strong emphasis on this relationship:

One way of proving that the rights of individuals or companies exist underinternational law is to show that the treaty conferring the rights gives theindividuals or companies access to an international tribunal in order to enforcetheir rights.24

Sir Hersch Lauterpacht, on the other hand, rejected a necessary relation-ship between rights and procedural capacity to defend the right. Asearly as 1947, he stated that:

The existence of a right and the power to assert it by judicial process are notidentical. In themunicipal sphere there are persons, such asminors and lunatics,who though endowedwith rights are unable to assert themby their own action.25

The assertion that rights and access to remedies are distinct – althoughoften connected – legal phenomena corresponds to Hohfeld’s theory,according to which the legal correlatives ‘right’ (understood as claim)and ‘duty’ are distinct from the conceptual pair ‘power’ (understood ascompetence or capacity) and ‘liability’.26 For this and other reasonsexplained above, I have chosen to regard rights as such whenever atreaty expressly proclaims ‘rights’.27 In my opinion, the lack of enforce-ment mechanisms does not prove that rights proclaimed in a treaty are

24 Akehurst’s Modern Introduction to International Law, p. 101.25 Sir Hersch Lauterpacht, ‘The Subjects of the Law of Nations’, 63 The Law Quarterly Review

(1947), p. 455.26 Hohfeld, finding the expression ‘capacity’ unfortunate, suggests ‘ability’ as the nearest

synonym, but then his discussion has a broader scope than procedural capacity. With‘power’ Hohfeld means all the powers connected to a legal relation – e.g. the owner’spower to extinguish his/her own legal interests over certain property throughabandonment. See Hohfeld, Fundamental Legal Conceptions, p. 51.

27 It was mentioned above, with reference to Louis Henkin, that it must be considered ofat least some importance that states have actually chosen the term ‘right’ in a numberof international treaties.


not ‘real’ or ‘legal’ rights. On the other hand, Hohfeld’s separation ofrights frompowers/capacities does not necessarily imply that the rights-holder’s access to an enforcementmechanism lacks importancewhen itcomes to identifying a right. Rather than interpreting the lack of suchaccess as evidence that there is no right stricto sensu, the argument seemsto work the other way around. It is reasonable to assume that, if inter-national enforcement mechanisms have been created in relation to aparticular legal provision, the contracting parties intended to create aninternational legal right and to undertake the corresponding obligation.It can be observed that, if Malanczuk’s, Oppenheim’s and Harris’ state-ments are understood this way, their views are not incompatible withthose of Lauterpacht and Hohfeld. This line of reasoning also gains sup-port from the ILC,which discussed the issue of diplomatic protection andits relation to the rights of the individual in 1998. The ILC SpecialRapporteur on diplomatic protection recognised the developmentswithin international law, whereby the individual has acquired ‘somelegal personality’ independently of the state of which it is a national:

The Special Rapporteur referred to the emergence of a large number of multi-lateral treaties recognizing the right of individual human beings to protectionindependently from the intervention by states and directly by the individualsthemselves through access to international forums. In this context he referred tothe right of petition. He further referred to the recognition of basic human rightsas creating obligations erga omnes and creating an interest on the part of all states.These developments, together with the proliferation of bilateral investmentpromotion and protection agreements and the establishment of bodies wherebya national of one state could present a claim against another state, created alegal framework outside the traditional area of diplomatic protection.28

In other words, treaties may bestow rights on individuals. This fact issupported by the existence of monitoring mechanisms which provideaccess for the individual, and which are regulated by a body of lawoutside the area of diplomatic protection.29

28 A/53/10, Report of the International Law Commission on the Work of its Fiftieth Session, 1998,paras. 65–66.

29 See also the Special Rapporteur’s report, in which he states that: ‘The State canno longer claim to enclose the individual within its exclusive sphere of nationalcompetence, since the international order bestows rights on him directly and places allStates under an obligation to ensure that those rights are respected. Under certainconditions, individuals can even obtain a hearing and defend their rights before inter-national bodies or committees established by international human rights treaties (theright of petition). The dualist approach taken by the original promoters of diplomatic


International monitoring mechanisms provide different degrees ofaccess for individuals, groups and NGOs. In some treaty monitoringsystems only the rights-holders themselves have locus standi before atribunal. When the locus standi of an individual or an organisation isbased on the actor’s own interest in the case – such as within theEuropean human rights system – it can be concluded that all categoriesof non-state actors who have brought cases are actual rights-holdersunder the treaty and that the contracting states have a clear legal obliga-tion towards all these actors. In other systems, such as the Inter-Americansystem for human rights, there is no victim requirement, which meansthat casesmay be brought before the commission by persons or organisa-tions with no connection to the particular case or violation.30 In suchsituations, it is reasonable to regard the enforcement mechanism asevidence of a general legal obligation towards the beneficiaries of thetreaty provisions. It can, however, not be concluded solely on the basisof the complainant’s access to the enforcement mechanism that thecomplainant is also holder of international rights under the treaty.

Another factor of importance is the character of the legal remedy inquestion. The legal remedies available to private actors in internationallaw are often of a quasi-judicial character. For instance, violations of therights enumerated in the ICCPR are examined by the Human RightsCommittee (HRC). The Committee cannot issue legally binding deci-sions, only ‘forward its views’ to the State Party concerned and to theindividual victim.31 Nevertheless, the access to a quasi-judicial bodysupervising compliance with the treaty does provide some evidencethat contracting states which have accepted the complaints procedurehave also taken on an international legal obligation regarding the indivi-dual rights. Other forms of monitoring compliance with conventionrights are state-reporting systems, which have been established under

protection is therefore no longer appropriate in such cases’, A/CN.4/484, PreliminaryReport on Diplomatic Protection, 4 February 1998, para. 35.

30 See, e.g., section 5.3 on the Inter-American Commission on Human Rights, whichprovides for unrestricted access for NGOs and other actors to bring complaints, as longas at least a potential victim is identified.

31 See section 8.2. It is possible that a practice of regarding these views as binding isdeveloping. McGoldrick (writing in the 1980s) has stated that: ‘Over a decade of practiceunder the OP [the optional protocol to the ICCPR] has demonstrated the feasibility ofindividual petition systems at the international level as the ECHRhas at the regional level.In this respect the OP represents a signal contribution to the recognition of the individualas a proper subject of international law.’ DominicMcGoldrick, The Human Rights Committee:Its Role in the Development of the International Covenant on Civil and Political Rights, Oxford:Clarendon Press, 1994, p. 198. The Optional Protocol has been in force since 1976.


several treaties, such as the ICCPR, ICESCR and the Convention on theElimination of all Forms of Discrimination Against Women (CEDAW).Such systems underline the legal obligation of State Parties on theinternational plane, but provide no particular standing for non-stateactors who have suffered violations. It could therefore be held that thereporting system mainly provides evidence of the legal obligationbetween the parties. On the other hand, it could also be argued thatthe reporting system has been established in order to monitor states’fulfilment of their obligations towards rights-holders.

Each system and situation will have to be studied separately, asdifferent combinations of circumstances surrounding the rights willprovide evidence of different strength as to the international legalobligation towards the rights-holders. Even though it has been con-cluded that rights may exist without enforcement and monitoringmechanisms, it is helpful to highlight examples of rights which areclearly held by non-state actors under international law.

Conclusion

The separation of rights from the power to enforce rights promotesconceptual clarity. Moreover, it should be borne in mind that themakers of international human rights law have chosen the term ‘rights’for the legal relationships they intended to create. Legal language con-stitutes an important message in itself, intended to create values and toaffect legal actors so that they undertake or refrain from certain con-duct. For these reasons, I have chosen not to question the validity or‘legality’ of rights expressly pronounced in international law.

Some writers, however, assert that the obligation of the contractingparties towards non-state actors and the corresponding rights underhuman rights treaties lie primarily on the national plane. Such a view-point does not exclude the possibility that there is also a legal obligationtowards the rights-holder on the international plane. It is neverthelessimportant for the rights-holders themselves, as well as the legal com-munity in general, to clarify to what extent the rights held and thecorresponding obligation lie on the international level. In order toanswer this question, the intention of the parties as expressed in thetreaty text needs to be examined. The existence of enforcementmechanisms in relation to a right may also provide such evidence.

In this chapter, different fields of international law will be surveyedin order to identify rights which are held by NGOs directly under theserules. The question of whether NGOs also have obligations under


international law will be dealt with in a separate section. Finally, inter-national humanitarian law, which is a field with special characteristicswith regard to non-state actors, will be discussed.

Before the survey of rights is carried out, however, the character ofrights pronounced for non-state actors within international law needsto be analysed in order to find out whether rights can be held byorganisations as such or only by their members.

4.2 Organisation rights

Human rights, group rights and organisation rights

Certain rights in modern human rights law benefit groups and peoples.Such ‘collective rights’ or ‘group rights’ are intended to protect not onlythe interests of an individual belonging to the group, or the aggregationof the interests of all the individuals of the group, but also the interestsof the group as such.32 Examples of rights which are usually classified asgroup rights are the right of peoples to existence (as distinguished fromthe individual right to life), the right to self-determination and the rightof minorities to preservation of a separate identity.33

Group rights are not a new phenomenon in international law. As aconsequence of the territorial changes following the First World War,a system for the protection of minorities was established under the

32 See, e.g., Ian Brownlie, Treaties and Indigenous Peoples, Oxford: Clarendon Press, 1992,pp. 29–54 and ‘The Rights of Peoples in Modern International Law’, in James Crawford(ed.), The Rights of Peoples, Oxford: Clarendon Press, 1988, p. 2; Allan Rosas, ‘So-CalledRights of the Third Generation’, in Asbjorn Eide et al. (eds.), Economic, Social andCultural Rights: A Textbook, Dordrecht: MartinusNijhoff, 1995, pp. 243–245; Natan Lerner,Group Rights and Discrimination in International Law, Dordrecht: Martinus Nijhoff, 1991,pp. 34–37; Harris, Cases and Materials, pp. 625–626, 722–725; Athanasia Spiliopoulou¯kermark, Justifications of Minority Protection in International Law, The Hague: Kluwer LawInternational/Iustus Publishing Co., 1997, pp. 42–48. The categorisation of certainrights as ‘group rights’ by these and other authors does not, however, alwaysmean thatthe group itself is regarded as the holder of the right, or that the protection of the groupas such provides the justification for the right; see Roland Rich, ‘Right to Development:A Right of Peoples?’, in Crawford (ed.), The Rights of Peoples, pp. 43–44 and below. I willuse the term ‘group rights’ as a neutral concept inclusive of both the understandingthat the individual members of the group are the rights-holders and the understandingthat the right is held by the group as such.

33 Lerner, Group Rights, pp. 34–35; Patrick Thornberry, International Law and the Rights ofMinorities, Oxford: Clarendon Press, 1991, pp. 57–58; James Crawford, ‘The Rights ofPeoples: ‘‘Peoples’’ or ‘‘Governments’’?’, in Crawford, The Rights of Peoples, pp. 56–66; AllanRosas, ‘The Right to Self-Determination’, in Asbjorn Eide et al., Economic, Social andCultural Rights, pp. 82, 252, and ¯kermark, Justifications of Minority Protection, p. 44.


League of Nations. This system included several treaties, individualprovisions in peace treaties and declarations containing minorityrights, created for the purpose of both granting equality to individualsbelonging to minorities in relation to other nationals of the state andmaking possible the preservation of the group’s characteristics.34

There has been substantial debate in the doctrine as to the justifica-tion and actual existence of group rights in international law. Somedeny altogether that there are indeed rights held under internationallaw by groups as such, preferring to regard them as rights held by theindividuals belonging to the group, while others accept the idea butdebate which rights belong to this category.35 Bearing in mind that thenotion of human rights has strong roots in a liberal-democratic tradi-tion of thinking, focusing on protection of the individual and individualfreedom, it is not surprising that the idea of group rights have by somebeen regarded as hard to reconcile with the notion of human rights:

but in a liberal scheme rights belong solely to individuals, as their ‘trumps’against the power of the group. Thus any theory that suggests that the group assuchmay itself be the holder of rights appears inherently anti-liberal and there-fore incompatible with the usual ‘Western’ formulation of human rights.36

In other words, a strengthened position of the group might threatenthe rights and freedoms of individuals outside, or inside, the group.37

34 For a description of the system, see, e.g., Lerner,Group Rights, pp. 11 ff. and Joel E. Oestreich,‘Liberal Theory and Minority Group Rights’, 21 HRQ (1999), pp. 110–114. As regards theideas underlying the minority protection system, see the Advisory Opinion of the PCIJin the case of Minority Schools in Albania of 6 April 1935, PCIJ Series A/B No. 64, p. 17.

35 See, e.g., YoramDinstein, ‘Collective Human Rights of Peoples andMinorities’, 25 ICLQ(1976), pp. 102–120; Lerner, Group Rights; Thornberry, International Law and the Rights ofMinorities; Marlies Galenkamp, ‘Collective Rights: Much Ado About Nothing? A ReviewEssay’, 9 Netherlands Quarterly of Human Rights (1991), No. 3, pp. 291–307; ¯kermark,Justifications of Minority Protection. As regards the definition of ‘group rights’ in interna-tional law, Brownlie holds that there are at least two criteria for the notion of grouprights. First, group rights are certain types of individual rights which tend to beexercised by the individual as a member of a group – e.g. the right to enjoy rightswithout discrimination as to race, religion, etc. Secondly, group rights involve elementsof recognition of the cultural and other identity of the group, a recognitionwhich is notensured by the ordinary application of the provisions representing individual rights.Brownlie thus includes both an individual and a corporate conception of group rights inhis view. Brownlie, Treaties and Indigenous Peoples, p. 29.

36 Oestrich, ‘Liberal Theory and Minority Group Rights’, p. 116.37 It is also sometimes asserted that, to the extent that group rights exist, they cannot be

‘human’ rights. For a vast number of references to works discussing these issues, seePeter Jones, ‘Human Rights, Group Rights, and Peoples’ Rights’, 21 HRQ (1999),pp. 80–81.


Moreover, the recognition of group rights might be regarded as a threatto the territorial sovereignty of the state and thus to stability in theinternational community.

One solution to the conflict between the idea of individual humanrights and group rights is to require that group rights must always bejustified on the individual plane. For instance, Joseph Raz lays down thefollowing conditions for the existence of a group right:

First, it exists because an aspect of the interest of human beings justifies holdingsome person(s) to be subject to a duty. Second, the interests in question are theinterests of individuals as members of a group in a public good and the right is aright to that public good because it serves their interest as members ofthe group. Thirdly, the interest of no single member of that group in thatpublic good is sufficient by itself to justify holding another person to be subjectto a duty.38

It is the second and third conditions which, according to Raz, distin-guish collective rights from individual rights. At the same time, Razemphasises that rights – even collective rights – can exist only if theyserve the interests of the individuals: ‘The right rests on the cumulativeinterests of many individuals.’39

The political scientist Peter Jones distinguishes between the ‘collec-tive’ and the ‘corporate’ conception of group rights.40 Group rightsinterpreted as collective rights are rights held by the individuals form-ing the collective, while according to the corporate conception of grouprights, the rights-holder is the group as such, defined by legal person-ality or by other factors, such as language or culture. A collective groupright is thus ‘theirs’, while a corporate right is ‘its’. Jones observes thatthe corporate conception of group rights is familiar in relation to legalcorporations. His article is, however, more concerned with moral thanwith legal rights.41 Jones finds that, from amoral point of view, only thecollective conception of group rights, as exemplified by the right to self-determination, is in sympathy with themorality of human rights, whilethe corporate conception of rights ‘belong to a quite different andpotentially conflicting morality’.42

‘Corporate rights’ as described by Jones is a useful concept for rightsheld by organisations. In order to avoid confusion with the common

38 Raz, The Morality of Freedom, p. 208. 39 Ibid., p. 209.40 Jones, ‘Human Rights, Group Rights, and Peoples’ Rights’, pp. 83–88.41 Ibid., p. 87. 42 Ibid., p. 107.


understanding of ‘corporations’ as commercial bodies I will, however,call rights held by NGOs and other organisations organisation rights.

Jones’ viewpoints raise the question whether organisation rights areproblematic in relation to (other) human rights. The two main argu-ments against the corporate conception of group rights on the interna-tional plane seem to be, first, that they may constitute a threat towardsindividual rights and freedoms and, secondly, that they may constitutea threat to stability within the international community. It could there-fore be argued that any candidates for the category of organisationrights should be analysed from the perspective of the individual anddeconstructed into aggregates of separate, individual rights.

The problem of organisation rights as related to individual rights andfreedoms was discussed during the drafting of Article 8 of the ICESCR,which protects the rights of trade unions. Some delegates held thattrade union rights were contrary to the general conception of humanrights, as they relate to only one category of persons and are held bycollectives rather than individuals.43 However, when one considerswhich kind of conflicts may arise between an organisation and itsmembers or other individuals, it seems that such conflicts – althougheasy to imagine – are not a product of the international protectionafforded to organisations in general. This is mainly due to the characterof organisation rights, as codified in current international law. Withsome anticipation of the result of the survey of organisation rights ininternational law in this book, it can be observed that they are basic,mostly consisting in the right to exist and to function freely asan organisation without interference from the state. In other words,organisation rights are mainly of a formal, not a material, character.International labour law is an exception in the sense that it includesrights of amorematerial kind, such as the right to collective bargaining.This right can come into conflict with, for instance, the interests of theemployer or of employees not belonging to the trade union. I suggest,however, that the organisation right to collective bargaining does assuch not constitute a threat to human rights as it can be interpreted in away which is consistent with individual rights.

Another – and, indeed, fundamental – difference between organisa-tion rights and other group rights, notably minority rights, is that one

43 Matthew C.R. Craven, The International Covenant on Economic, Social and Cultural Rights: APerspective on its Development, Oxford: Clarendon Press, 1995, p. 250. See also section 4.2on organisation rights in the ICESCR.


chooses to belong to an organisation – at least as long as the negativefreedom of association is respected – while people are born into mino-rities and peoples.44 This means that there is another scope for indivi-dual choices in relation to organisations than in relation to culturalminorities or peoples, where the question of belonging to the group isclosely connected to a person’s identity and life in general. The conflictswhich may arise between individual rights and the group rights of aminority, thus do not seem to be actualised in the case of organisationrights.

There is indeed one case where organisation rights may come intoconflict with human rights: if racist, non-democratic or terrorist organ-isations use international law to protect their identity and position.Although it might be held that it is not the right to associate as suchwhich poses a threat to human rights (but rather the ideologies andactivities of the organisation), legal rights protecting the organisationcreate a platform for its work. The protection afforded to organisationsin international law is, however, not a problem in this respect. Inpresent-day international law, there are legal grounds for states toexempt such organisations from organisation rights, and even treatyobligations on contracting states to prohibit them.

Finally, it may be considered whether organisation rights pose athreat to the stability of the state, or even to the international commu-nity. This question has been much discussed in relation to the rightsof peoples and minorities. It is a fairly obvious observation that thebasic organisation rights which have been recognised so far do not assuch conflict with state stability. On the contrary, they are an integralpart of democracy, and it can rather be argued that they promotestability.45

44 On the negative freedom of association, see Manfred Nowak, UN Covenant on Civil andPolitical Rights: CCPR Commentary, Kiel: N. P. Engel, 1993, pp. 387–389 and Sarah Joseph,Jenny Schultz and Melissa Castan, The International Covenant on Civil and Political Rights:Cases, Materials, and Commentary, Oxford University Press, 2000, pp. 439–440.

45 The Turkish government has argued before the European Court of Human Rights incases regarding organisations which pursue Kurdish interests that the organisationsthreaten national security and the territorial integrity of the country (see, e.g., Freedomand Democracy Party (OZDEP) v. Turkey, 8 December 1999). In such cases, it is the particularagendas or activities of the organisations in question that are regarded as a threat,rather than the fact that organisations may in general be established. Accordingly,human rights treaties (e.g. ICCPR, Article 22, para. 2 and ECHR, Article 11, para. 2)recognise that state parties may restrict the right to freedom of association for theprotection of certain interests, while not allowing that the right as such is suspended.


Organisation rights in international law

Introduction

The structure of rights relating to the existence and activities of privateorganisations corresponds to that of other group rights: either they aredesigned to protect the rights of the individual members, such as theright to form and join organisations, or they offer protection for theorganisation as such, or both. Our survey of organisation rights ininternational law will concentrate on the two latter categories. As abackground to this survey it may nevertheless be useful briefly to men-tion some of the individual rights related to organisations.

The individual’s right to participate in organisational life is protectedby several international human rights instruments. According toArticle 20 of the Universal Declaration of Human Rights, everyone hasthe right to freedom of peaceful assembly and association and also theright not to be compelled to belong to an association. Article 23(4) ofthe Declaration protects the right to form and to join trade unions. Thesame right is guaranteed by the ICESCR, Article 8(1a). The ICCPR, inArticle 22, establishes the right to freedom of association with others,including the right to form and join trade unions.

In addition to the protection offered by these conventions of a generalcharacter, rights relating to organisations have been established inseveral specialised fields of law. For instance, the European FrameworkConvention for the Protection of National Minorities establishes thatevery person belonging to a national minority has the right to establishreligious organisations and associations.46 Similarly, Article 2(4) of theDeclaration on the Rights of Persons Belonging to National or Ethnic,Religious and Linguistic Minorities states that persons belonging tominorities have the right to establish and maintain their own associa-tions.47 According to Article 7(c) of CEDAW, women have the right ‘toparticipate in non-governmental organizations and associations con-cerned with the public and political life of the country’.

It should be observed that it is not the primary aim of this chapter toexamine the material content of the rights provisions which are foundto include elements of organisation rights. The content of rights will bedescribed only to the extent that they have a particular connection toorganisations. I have also limited the survey of rights to treaties, with

46 FrameworkConvention for the Protection of NationalMinorities, ETSNo. 157, Article 8.47 Adopted by General Assembly resolution A/RES/47/135, 3 February 1993.


the exception of two non-binding instruments of particular relevance toNGOs: the UN Declaration on Human Rights Defenders and the Councilof Europe Fundamental Principles on the Status of Non-GovernmentalOrganisations in Europe. Resolutions which establish rights for NGOs intheir co-operation with IGOs are examined later.48 The discussion onthe obligations of NGOs, on the other hand, includes both instrumentsof varying normative character as well as the obligations formulated forNGOs in resolutions concerning IGO–NGO co-operation. The interna-tional responsibilities or obligations of NGOs constitute an area of lawwhich is new and possibly still under development. It is thereforeinteresting to examine as much as possible of the material that isthere. Rights and obligations under international humanitarian laware dealt with later in the chapter.49

The International Covenant on Civil and Political Rights

Article 22 of the ICCPR provides that:

1. Everyone shall have the right to freedom of association with others,including the right to form and join trade unions for the protectionof his interests.

2. No restrictions may be placed on the exercise of this right other thanthose which are prescribed by law and which are necessary in ademocratic society.

According to Manfred Nowak, the right to freedom of association, asprotected by Article 22 of the ICCPR, includes not only the individualright of freedom to form or join an organisation, but also ‘the collectiveright of an existing association to perform activities in pursuit of thecommon interests of its members’.50 State parties are obliged not tointerfere with the founding of associations, or with their activities, andto protect the formation of associations against interference by privateparties. Moreover, state parties are under a positive duty to provide thelegal framework for the founding of juridical persons under domestic

48 Chapter 7. 49 Section 4.4.50 Nowak, UN Covenant on Civil and Political Rights: CCPR Commentary, p. 387. According to the

decision of the majority of the Human Rights Committee regarding communicationNo. 118/1982 ( J.B. et al., represented by the Union of Provincial Employees v. Canada), the rightto strike is, however, excluded from the scope of the Article. This decision was based onan analysis of the travaux preparatoires and an interpretation of Article 22 as compared toArticle 8 of the Covenant on Economic, Social and Cultural Rights, see Manfred Nowak,‘Survey of Decisions Given up Till July 1986’, 7 HRLJ (1986), p. 302, and Joseph, Schultzand Castan, The International Covenant on Civil and Political Rights, pp. 434–439.


law.51 The Human Rights Committee has declared in its jurisprudencethat complicated registration procedures for trade unions and otherNGOs are contrary to the Covenant. It stated in its concluding obser-vations regarding a state party report that it was ‘concerned aboutthe difficulties arising from the registration procedures to which non-governmental organizations and trade unions are subjected’, andcontinued:

The Committee, reiterating that the free functioning of non-governmentalorganizations is essential for protection of human rights and dissemination ofinformation in regard to human rights among the people, recommends thatlaws, regulations and administrative practices relating to their registration andactivities be reviewed without delay in order that their establishment and freeoperation may be facilitated in accordance with article 22 of the Covenant.52

The Committee has also explained that prohibitions regarding theactivities of NGOsmust be limited.53 For instance, a general prohibitionimposed on the right of civil servants to organise a trade union andbargain collectively, as well as their right to strike, has been found toraise ‘serious concerns’ in relation to Article 22.54 Furthermore, theCommittee has stressed the importance of independence for humanrights NGOs, and has criticised measures preventing NGO officials fromtaking part in its meetings.55

As regards the character of the organisations protected, the scope isbroad. Purposes may be political, religious, ideological, economic,social, sports, etc. and the legal form of association is unrestricted.Even de facto organisations, lacking juridical personality, are protected.Organisations founded under public law are, however, not covered byArticle 22.56

51 Nowak, ‘UN Covenant’, p. 387.52 CCPR/C/79/Add.86, Concluding Observations of the Human Rights Committee: Belarus,

19 November 1997, para. 19.53 CCPR/C/79/Add.87, Concluding Observations of the Human Rights Committee: Lithuania,

19 November 1997, para. 20.54 CCPR/C/79/Add.104, Concluding Observations of the Human Rights Committee: Chile, 30 March

1999, para. 25. See also CCPR/C/79/Add.105 (Canada), 7 April 1999, para. 17.55 CCPR/C/79/Add.43, Concluding Observations of the Human Rights Committee: Tunisia,

23 November 1994, para. 12 and CCPR/C/79/Add.65 (Nigeria), 24 July 1996, para. 290.In the latter case, two officials of the Nigerian NGO Civil Liberty Organisation wereprevented from taking part in the meeting of the Human Rights Committee and hadtheir passports confiscated by the authorities.

56 Nowak, ‘UN Covenant’, p. 387.


For NGOs, the right to freedom of association under Article 22 is themost fundamental right in the Covenant which (at least according toNowak) includes elements of organisation rights. It can be discussedwhether Article 21 on the right to peaceful assembly also includeselements of organisation rights; Nowak states that this is one of theArticles which ‘ensure rights also to groups of persons or to juridicalpersons’.57 However, he is also of the opinion that assemblies held byassociations are primarily protected by Article 22.58 Unfortunately, theHuman Rights Committee has not adopted any General Comments orRecommendations on the rights to freedom of association and peacefulassembly. It should also be observed that, since only individuals areentitled to submit complaints to the Human Rights Committee regard-ing violations of the Covenant, the Committee’s jurisprudence does notinclude case-law concerning the extent to which the Covenant protectsNGOs as such.59

There are other provisions in the Covenant which might includeaspects of group or organisation rights, notably Article 18 on the rightto freedom of religion.60 Some support for such an interpretation ofArticle 18 can be found in a General Comment of the Human RightsCommittee, where it states that:

In addition, the practice and teaching of religion or belief includes acts integralto the conduct by religious groups of their basic affairs, such as the freedom tochoose their religious leaders, priests and teachers, the freedom to establishseminaries or religious schools and the freedom to prepare and distributereligious texts or publications.61

In addition, there is no reason to exclude the possibility that rightswhich are neutral to the character of the rights-holder, such as theright to a fair and public hearing under Article 14(1), can possibly alsobe held by NGOs. It would take this discussion too far to examine all ofthe Convention rights in order to determine whether they include

57 Ibid., p. 658. 58 Ibid., p. 374.59 Optional Protocol to the International Covenant on Civil and Political Rights, Article 2.60 Article 18(1) reads: ‘Everyone shall have the right to freedom of thought, conscience

and religion. This right shall include freedom to have or to adopt a religion or belief ofhis choice, and freedom, either individually or in community with others and in publicor private, to manifest his religion or belief in worship, observance, practice andteaching.’

61 Human Rights Committee, General Comment No. 22 (adopted in 1993), para. 4, inHRI/GEN/1/Rev.5, Compilation of General Comments and General Recommendations Adopted byHuman Rights Treaty Bodies, 26 April 2001, p. 144. See also Nowak, ‘UN Covenant’, p. 658.


aspects of organisation rights or whether they are purely individual intheir character. It is possible that all the rights which are not necessarilyconnected to a physical person, such as the right to life or the right notto be subjected to torture, may also be held by organisations, but in theabsence of clear support for such an interpretation from the HumanRights Committee or from states parties, the answer is uncertain.

There is, however, an inadmissibility decision from the Human RightsCommittee regarding a complaint submitted under theOptional Protocolwhich seems to contradict the possibility that companies, and thuspossibly other juridical persons, have any rights under the Convention.The case of Lamagna v. Australia concerned the owner of a nursing carecentre, who complained that she had been subjected to unfair, unreason-able and unjust treatment in relation to subsidies that she had beendenied by the authorities. She did not, however, invoke any specificarticles of the Covenant. The Committee stated:

However, the author who purchased the nursing as an enterprise is essentiallyclaiming before the Committee violations of the rights of her company, whichhas its own legal personality. All domestic remedies referred to in the presentcasewere in fact brought before the Courts in the name of the company, and notof the author, furthermore the author has not substantiated that her rightsunder the Covenant have been violated. . . . The Committee considers that theauthor, by claiming violations of her company’s rights, which are not protected bythe Covenant has no standing within the meaning of article 1, of the OptionalProtocol, in respect of the complaint related to her company and that no claimrelated to the author personally has been substantiated for purposes of article 2of the Optional Protocol.62

The Committee thus declared the complaint inadmissible. The decisioncan be interpreted in several ways. The first is simply that companies donot have rights under the Covenant, thus not excluding the possibilitythat other juridical persons, such as NGOs, may have such rights.Secondly, the decision could be understood as indicating that juridicalpersons in general cannot have such rights. Thirdly, the Committee’sstatement can be understood as not specifically referring to the com-pany, but to the rightswhichmight have been actualised by the complaint.This would mean that the Committee, to some extent, anticipated adecision on the merits by indicating that the complaint would nothave been successful even if it had been submitted on behalf of the

62 Lamagna v. Australia, Communication No. 737/1997, CCPR/C/65/D/737/1997, 30 April1999, para. 6.2 (emphasis added).


complainant herself. Such an interpretation enjoys some support fromthe fact that no rights in the Covenant were invoked and that thecircumstances of the case did not fall clearly under any of its provisions.In my opinion, the Committee’s statement is unclear, and for thepurposes of this study it can be concluded only that it does not totallyexclude the possibility that NGOs enjoy protection under the Covenant.

In conclusion, it is possible that several of the rights enunciated by theICCPR can be held byNGOs. Nowak’s commentary provides clear supportfor such an interpretation, while the position of the Human RightsCommittee is uncertain. The right to freedom of association underArticle 22 is the most fundamental of the rights possibly held by NGOs.

The question which remains to be answered is to what extent there isevidence that the contracting states to the ICCPR are under an interna-tional legal obligation towards NGOs as to the fulfilment of these rights.I have suggested above that such evidence can be found through anexamination of the treaty text and of the supervisory mechanisms setup to monitor the implementation of the convention rights.

The general obligation of states parties to the ICCPR is expressed inArticle 2:

1. Each State Party to the present Covenant undertakes to respect and toensure to all individualswithin its territory and subject to its jurisdictionthe rights recognized in the present Covenant, without distinction ofany kind, such as race, colour, sex, language, religion, political or otheropinion, national or social origin, property, birth or other status.

2. Where not already provided for by existing legislative or othermeasures, each State Party to the present Covenant undertakes to takethe necessary steps, in accordancewith its constitutional processes andwith the provisions of the present Covenant, to adopt such laws orother measures as may be necessary to give effect to the rightsrecognized in the present Covenant.

Paragraph (1) expresses a general undertaking of the contracting partiesto respect the Convention and to apply it in a non-discriminatory waytowards all individuals within its territory. It should be noted that theobligation is absolute, in the sense that it does not take account ofavailable resources or other circumstances, as is mentioned in thecorresponding article in the ICESCR.

During the drafting of the Convention, there was disagreementamong states as regards Article 2.63 Some state representatives saw

63 McGoldrick, The Human Rights Committee, pp. 12–13.


Article 2(1) as an expression of an absolute and immediate obligation ofthe contracting parties. According to this view, states could becomeparties to the Covenant only after having taken the necessary legisla-tive measures to secure the rights. These representatives criticisedArticle 2(2), because it was regarded as leaving room for states to fulfiltheir obligations only progressively. Other states argued that certainelasticity was required as regards the obligation posed on state parties,and there was a need to take account of the constitutional processes ofdifferent countries. A US proposal to include a provision stating that‘the provisions of the Covenant shall not themselves become effectiveas national law’ was decisively rejected.64

From the national perspective, Article 2(2) has been differently inter-preted by courts in different countries, some taking such implementa-tion clauses to provide evidence of state parties’ intent to refuseapplicability, others seeing it as an expression of respect for the differentconstitutional approaches to application of international law in thedomestic field.65 The present wording of Article 2(2) represents acompromise, meaning that the direct applicability of the ICCPR is anunanswered question from the perspective of international law, leavingit open for each particular state to decide what legislative measures arenecessary for the implementation of the Convention. The HumanRights Committee has stated that ‘article 2 of the Covenant generallyleaves it to the States parties concerned to choose their methodof implementation’.66 Nevertheless, the Committee has demonstrateda certain tendency to promote the direct applicability of the Covenant,and noted in its Annual Report 1999 that domestic courts increasinglyapplied the standards contained in the ICCPR.67

As indicated above, the ICCPR is provided with a facultative mechan-ism for complaint under the Optional Protocol to the Convention.Under Article 2 of the Optional Protocol, individuals who claim thatany of their rights enumerated in the Covenant have been violated and

64 Mc Goldrick, The Human Rights Committee, p. 271.65 See Benedetto Conforti, ‘National Courts and the International Law of Human Rights’,

in Benedetto Conforti and Francesco Francioni (eds.), Enforcing International Human Rightsin Domestic Courts, The Hague: Martinus Nijhoff, 1997, p. 9.

66 Human Rights Committee, General Comment No. 3 (adopted in 1981), para. 1, inHRI/GEN/1/Rev.5, Compilation of General Comments and General Recommendations Adoptedby Human Rights Treaty Bodies, 26 April 2001, p. 112.

67 A/54/40, Report of the Human Rights Committee, I, 21 October 1999, paras. 124, 404, andNowak, ‘UN Covenant’, p. 54.


who have exhausted all available domestic remedies may submit awritten communication to the Human Rights Committee for considera-tion. After having considered communications received in the light ofall information made available to it by the individual and by the stateparty concerned, the Committee adopts a view which is forwarded tothe state party concerned and to the individual. The view is not bindingon the state party, but the opinions delivered by the Committee arepublicised and generally considered authoritative, although often notcomplied with.68

According to the wording of Article 2, communications may only besubmitted by individuals claiming to be the victim of a violation of therights enumerated in the Covenant. The fact that communications maynot be submitted by organisations as alleged victims of violations hasbeen confirmed by the Committee in several of its opinions.69 Thejurisprudence of the Human Rights Committee also excludes the possi-bility that communications are submitted through a representativeindividual alleging breaches of an organisation right or a group right,since the Optional Protocol provides a procedure for the protection ofindividual rights only.70 Nowak notes in his commentary that ‘a varietyof Articles (e.g. 1, 18, 21, 22, 23, 25 or 27) ensures rights also to groups ofpersons; but under a literal reading of Arts. 1 and 2 OP, a violation ofthese rights cannot be remedied by the affected groups or organizationsbut only by individual members of such’.71 Thus, the only possibility isfor individual members to submit communications individually orjointly alleging violations of their individual rights.

There is also a reporting system establishedunder the ICCPR. Accordingto Article 40 of the Covenant, state parties undertake to submit reportson the measures they have adopted in order to give effect to the

68 McGoldrick, The Human Rights Committee, pp. 151–152, 201, 202, and Nowak, ‘UNCovenant’, p. xix. Nowak’s view is, however, that the views of the Committee‘are generally complied with’.

69 See section 5.2.70 See Communication No. 40/1978 (Hartikainen v. Finland), which was submitted by the

Secretary-General of theUnion of Free Thinkers of Finland onbehalf of the organisationas well as on his own behalf, in Joseph, Schultz and Castan, The International Covenanton Civil and Political Rights, p. 43, the case of Lamagna v. Australiamentioned above,Communication No. 737/1997, CCPR/C/65/D/737/1997, 30 April 1999, No 163/1984, and(regarding the right to self-determination) Communications No. 78/1980 (A.D. v.Canada; submitted on behalf of the Mikmaq tribal society), in A/39/40, Report of theHuman Rights Committee, 1984, pp. 200–203, and No. 167/1984 (Lubicon Lake Band v.Canada), in 96 ILR (1994), pp. 667–707, particularly at para. 32.1.

71 Nowak, ‘UN Covenant’, p. 658.


rights recognised in the Covenant and on the progress made in theenjoyment of those rights.72 This system, as well as the facultativeinterstate complaint system under Article 41, underlines the legal obli-gation state parties have towards other contracting states to complywith the treaty.73 It is, however,more doubtful whether the existence ofthesemechanisms provides evidence of the legal obligation towards therights-holders.

It can be concluded that, although the ICCPR formulates rather pre-cise rights relating to organisations, it cannot be ascertained that theserights protect NGOs as such, and the evidence of state obligationtowards NGOs on the international plane is not particularly strong.The right to freedom of association with its different components,such as the right to found organisations and to function freely, is ofcourse fundamental for NGOs. However, the ICCPR is not very useful asan instrument for NGOs when it comes to defending this and otherrights under the Covenant, as NGOs lack standing under the OptionalProtocol as victims before the Human Rights Committee. Apart fromsubmitting general information to the Committee – for example, in theform of parallel reports – the only remedy available to NGOs for defend-ing these rights is the 1503 procedure, which deals with the examina-tion of situations which appear to reveal a consistent pattern of grossviolations of human rights and thus cannot be used for individual casesof violations of organisation rights.74

The International Covenant on Economic, Socialand Cultural Rights

Most rights pronounced in the ICESCR are clearly of a personal nature,such as the right to social security and the right of everyone to anadequate standard of living. Although there are rights which benefitgroups, such as the right to self-determination guaranteed in Article 1,the provision that is most relevant for the question of organisationrights is Article 8:

72 It can be observed, however, that many states show a lack of respect as to theirobligation to submit reports. During its 54th session, the Human Rights Committeenoted that eighty-three States Parties to the Covenant, or nearly two-thirds of all StatesParties, were in arrears with their reports, A/54/40, Report of the Human Rights Committee,I, 21 October 1999, para. 49.

73 The interstate complaints system has so far never been used.74 See section 5.2.


1. The States Parties to the present Covenant undertake to ensure:

(a) The right of everyone to form trade unions and join the tradeunion of his choice, subject only to the rules of the organizationconcerned, for the promotion and protection of his economic andsocial interests. No restrictions may be placed on the exercise ofthis right other than those prescribed by law and which arenecessary in a democratic society in the interests of nationalsecurity or public order or for the protection of the rights andfreedoms of others;

(b) The right of trade unions to establish national federations orconfederations and the right of the latter to form or joininternational trade-union organizations;

(c) The right of trade unions to function freely subject to nolimitations other than those prescribed by law and which arenecessary in a democratic society in the interests of nationalsecurity or public order or for the protection of the rights andfreedoms of others;

(d) The right to strike, provided that it is exercised in conformity withthe laws of the particular country.75

International standards relating to tradeunions provide themost obviousexample of organisation rights in international law. These rights can beseen as deriving from the general right to freedom of association, butwere given a special status because of the important role historicallyplayed by trade unions in the realisation of other economic and socialrights.76 During the drafting of the ICESCR, criticism was raised againstspecial protection for trade unions. It was considered contrary to thenotion of human rights that rights related to only one category ofpersons, and that they were held by collectives rather than individuals.However, the majority found it unsuitable to guarantee the individualright to form and join trade unions but at the same time denytrade unions a right to function freely, and that in order effectively toguarantee the individual right to form and join trade unions, tradeunions themselves had to be guaranteed the right to act.77

The text which was finally adopted as Article 8 of the ICESCR isdescribed by Craven in his book on the Covenant as a hybrid of

75 It can be discussedwhether the right to the enjoyment of just and favourable conditionsof work with its different components under Article 7 might include aspects oforganisation rights. Considering the clear reference to trade unions in Article 8,however, it seems unlikely that other rights include an implicit organisation right.

76 Craven, The International Covenant on Economic, Social and Cultural Rights, pp. 248–249.77 Ibid., pp. 250, 255–256.


individual and collective rights. The wording of the text provides clearexamples of organisation rights, including the right of trade unions toestablish national federations or confederations and the right of federa-tions and confederations to join international trade union organisationsunder Article 8(1b) and the right of trade unions to ‘function freelysubject to no limitations other than those prescribed by law and whichare necessary in a democratic society’, guaranteed by Article 8(c).78

The observations made by the Committee on Economic, Social andCultural Rights on state party reports contain little information as towhat different components are included in the organisation rights guar-anteed by the Covenant.79 As regards the right to function freely, theCommittee has emphasised that the right shall be subject to no restric-tions, except under the conditions mentioned in the provision.80 Oneexample of a restriction contrary to the Covenant mentioned by theCommittee is to prevent trade unions from registration if national legisla-tion requires registration.81 The Committee has also criticised a govern-ment office created to monitor trade unions.82 Furthermore, it has statedthat Article 8 enshrines the right to collective bargaining.83 According toCraven, who notes that the precise scope of the provision was left unde-fined by the drafters, the right to function freely also includes the right tocall conferences andmeetingswithout interference.84As regards the rightto federate, theCommittee has been critical of the need for approval fromthe authorities for trade unions to join an international organisation.85

In addition to the rights which are explicitly said to be held byorganisations, the right under Article 8(a) to form trade unions andjoin the trade union of one’s choice and the right to strike underArticle 8(d) might include corporate elements. The right under Article 8(a)to form trade unions and join the trade union of one’s choice, ‘subjectonly to the rules of the organization concerned’, implies the

78 Craven’s own comment is that it would be preferable if the collective right to federatehad been inferred from the individual right, since this would mean that the individualright would prevail in case of conflict. Ibid., pp. 255–256.

79 Unfortunately, no General Comment has been adopted regarding Article 8.80 E/C.12/1/Add.46, Concluding Observations, 1 September 2000, para. 35.81 E/C.12/1/Add.7/Rev.1, Concluding Observations, 6 December 1996, para. 17.82 E/C.12/1990/SR.40, para. 63, cited in Craven, The International Covenant on Economic, Social

and Cultural Rights, p. 273.83 Ibid., para. 9 and E/C.12/1/Add.59, Concluding Observations, 21 May 2001, para. 39, and

E/C.12/1/Add.9.84 Craven, The International Covenant on Economic, Social and Cultural Rights, p. 256.85 E/C.12/1987/SR.6, para. 45, cited in Craven, The International Covenant on Economic, Social

and Cultural Rights, p. 273.


organisation right of trade unions to establish internal rules and main-tain control over their own membership.86 The right to strike seems toinclude both an individual and an organisation right.87

The Covenant should also be examined in order to consider the ques-tion to what extent there is evidence that the state parties to theCovenant are under a legal obligation towards the organisations underinternational law. The general obligation of state parties to implementthe ICESCR is articulated in Article 2(1):

EachState Party to thepresentCovenant undertakes to take steps, individually andthrough international assistance and co-operation, especially economic and tech-nical, to themaximum of its available resources, with a view to achieving progres-sively the full realization of the rights recognized in the present Covenant by allappropriate means, including particularly the adoption of legislative measures.

The Committee on Economic, Social and Cultural Rights has adoptedtwo General Comments relating to state party obligation, one on The

Domestic Application of the Covenant (General Comment 9) and one on TheNature of States Parties Obligations (General Comment 3).88 The differencesbetween the ICCPR and the ICESCR as to the nature of party obligationshave been given a clear expression in the respective treaty texts. Asregards the phrase in Article 2(1) regarding steps ‘with a view to achiev-ing progressively the full realisation of the rights recognized’, theCommittee observes that the concept of progressive realisation consti-tutes a recognition of the fact that full realisation of all rights in theCovenant will generally not be able to be achieved in a short period oftime, and that in this sense the obligation differs significantly from thatcontained in Article 2 of the ICCPR, which embodies an immediateobligation to respect and ensure all of the relevant rights.Nevertheless, the Committee observes that the phrase:

must be read in the light of the overall objective, indeed the raison d’etre, of theCovenant which is to establish clear obligations for States parties in respect ofthe full realization of the rights in question. It thus imposes an obligation tomove as expeditiously and effectively as possible towards that goal.89

86 Craven, The International Covenant on Economic, Social and Cultural Rights, p. 266.87 Ibid., p. 278.88 Committee on Economic, Social and Cultural Rights, General Comment 9 and General

Comment 3, in HRI/GEN/1/Rev.5, Compilation of General Comments, 26 April 2001, pp. 58–62,18–21.

89 Committee on Economic, Social and Cultural Rights, General Comment 3, 14 December1990, para. 9, in HRI/GEN/1/Rev.5, p. 20.


Furthermore, the Committee stresses that some of the obligationsundertaken by state parties are of immediate effect:

In particular, while the Covenant provides for progressive realization andacknowledges the constraints due to the limits of available resources, it alsoimposes various obligations which are of immediate effect.90

The undertaking to guarantee that relevant rights will be exercisedwithout discrimination was mentioned as an example of an obligationof ‘immediate effect’, but the Committee did not specify all such obliga-tions.91 As for the obligation relating to the rights contained in Article 8,it should be noted that it is specifically stated in the Article that thestates parties undertake to ensure these rights. This can be compared withthe provisions guaranteeing rights which are of the type which requiresubstantial economic resources, such as the right to an adequate stan-dard of living, which all include the phrase ‘The State parties to thepresent Covenant recognize the right . . .’ The expression ‘undertaketo respect and ensure’ is used in the ICCPR, which pronounces animmediate obligation.92 It can therefore be concluded that theCommittee regarded all obligations phrased in the former way, andthus including Article 8, to be of ‘immediate effect’.93

As to the domestic application of the Covenant, the Committee onEconomic, Social and Cultural Rights discussed this issue in its GeneralComment 9. The Committee noted that the Covenant does not stipulatethe means by which it is to be implemented in national law and thatthere is no provision obligating its comprehensive incorporation.94

Nevertheless, the Committee holds the opinion that:

while the Covenant does not formally oblige States to incorporate its provisionsin domestic law, such an approach is desirable. Direct incorporation avoidsproblems that might arise in the translation of treaty obligations into nationallaw, and provides a basis for the direct invocation of the Covenant rights byindividuals in national courts. For these reasons, the Committee stronglyencourages formal adoption or incorporation of the Covenant in national law.95

The Committee thus advocates a development of national legal systemstowards incorporating the rights provisions. It specifically mentions

90 Ibid., para. 1, p. 18. 91 Ibid. 92 See Article 2(1).93 This view is supported by Craven, The International Covenant on Economic, Social and Cultural

Rights, p. 261. See also Nowak, ‘UN Covenant’, p. 372.94 Committee on Economic, Social and Cultural Rights, General Comment 9, para. 5, in

HRI/GEN/1/Rev.5, Compilation of General Comments, 26 April 2001, p. 59.95 Ibid., para. 8, p. 60.


that ‘It is especially important to avoid any a priori assumption that thenorms should be considered to be non-self-executing’, and points to thefact that many of the treaty provisions are specific enough to be applieddirectly in national courts.96 In this context, it should be noted thatArticle 8 on trade union rights is one of the more specific rights in theCovenant. Furthermore, through the reference made in para. 3 to theILO Convention 1948 on the Freedom of Association, there is a body ofinternational rules which can complement and specify Article 8 of theICESCR.

The only supervisory mechanism in operation under the Covenant isthe submission under Article 16 of state party reports on the measureswhich they have adopted and the progress made in achieving the obser-vance of the Covenant rights for consideration by the Committee onEconomic, Social and Cultural rights. A draft Optional Protocol for thesubmission of individual communications is still under considerationin the Commission on Human Rights. According to the proposed textfor Article 2, ‘Any individual or group claiming to be a victim of aviolation’ may submit a communication to the Committee for examina-tion.97 The issue whether organisations as such can be considered to bevictims of violations of the rights set forth in the ICESCR is not discussedin the Committee’s report on the Protocol.98 If and when the Protocolenters into force, and if organisations are given locus standi within thecomplaints system, the evidence of state party obligation towards therights-holders on the international plane will be fairly strong. Bearingin mind the quasi-judicial character of the mechanism, however, theorganisation rights under the Covenant will not be fully instrumentalfor trade unions which seek to defend their interests on the interna-tional level.

The UN Declaration on Human Rights Defenders

The Declaration on the Right and Responsibility of Individuals, Groupsand Organs of Society to Promote and Protect Universally RecognizedHuman Rights and Fundamental Freedoms was adopted by consensusby the UN General Assembly in December 1998 after a negotiation

96 It also pointed out that attempts during the drafting process to include a specificprovision in the Covenant to the effect that it be considered ‘non-self-executing’ werestrongly rejected. Ibid., para. 11, p. 61.

97 E/CN.4/1997/105, Status of the International Covenants on Human Rights, 18 December 1996,Annex, para. 31.

98 Ibid., paras. 19–20. For a more elaborate description of the Draft, see section 5.2.


process of thirteen years.99 Although it is a legally non-binding docu-ment, it can be observed that it specifically refers to the rights ofindividuals in relation to NGOs. The Declaration does not explicitlypronounce rights pertaining to NGOs as such; nevertheless, organisa-tion rights are implied in the text considering that all the rights for-mulated are bestowed on ‘everyone, individually and in associationwith others’.100

Themost important right from anNGO perspective is Article 5, whichprovides that:

For the purpose of promoting and protecting human rights and fundamentalfreedoms, everyone has the right, individually and in association with others, atthe national and international levels:

a. To meet or assemble peacefully;b. To form, join and participate in non-governmental organizations,

associations or groups;c. To communicate with non-governmental or intergovernmental

organizations.

Other rights closely connected to the activities of NGOs include:

* The right to seek, obtain, receive and hold information about allhuman rights and fundamental freedoms (Article 6a)

* The right freely to publish, impart or disseminate to others views,information and knowledge on all human rights and fundamentalfreedoms (Article 6b)

* The right to submit to governmental bodies and agencies andorganisations concerned with public affairs criticism and proposals forimproving their functioning (Article 8, para. 2)

* The right to offer and provide professionally qualified legal assistanceor other relevant advice and assistance in defending human rights andfundamental freedoms (Article 9, para. 3c)

* The right to unhindered access to and communication withinternational bodies with general or special competence to receive andconsider communications on matters of human rights and fundamen-tal freedoms (Article 9, para. 4).

99 A/RES/53/144, Declaration on the Right and Responsibility of Individuals, Groups and Organs ofSociety, 8 March 1999.

100 The delegation of the United Kingdom to the Working Group which drafted theDeclaration, however, specifically stated that the rights included in a proposedArticle 3 (on the right to participate in peaceful activities against violations of humanrights) were ‘those of individuals, exercisable individually or in association with others,rather than of groups as such’. E/CN.4/1993/64, Drafting of a Declaration, 1 March 1993,para. 35.


Many of the activities mentioned in the Articles are usually performedwithin the framework of an NGO, and have certainly been created inorder to protect their work.

In April 2000, the Commission on Human Rights established themandate of a Special Representative of the Secretary-General onHuman Rights Defenders.101 The Special Representative receives com-munications about violations against human rights defenders from,inter alia, any individual, group, or NGO with reliable knowledge ofsuch violations.102 The overwhelming majority of communicationssent by the Special Representative to governments concern cases inwhich human rights defenders have been targeted in their capacity asmembers of NGOs. Many violations of the rights contained in theDeclaration are regarded by the Representative as violations againstNGOs, rather than violations committed against individuals.103

The ILO Conventions

The ILO has adopted more than 180 conventions covering a broad rangeof subjectswithin the area of labour law. It is not possible to review all theconventions within the framework of the present study in order toidentify organisation rights. I have therefore concentrated on the con-ventions which have been recognised by the ILO Governing Body asfundamental conventions, since they are of a general nature and shouldbe implemented and ratified by all member states of the ILO.104

According to the ILO Declaration on Fundamental Principles and Rightsat Work (1998), all member states of the ILO have an obligation arisingfrom their membership to respect and realise four principles concerningthe rights contained in the fundamental conventions, ofwhich the first isthe right to freedom of association and the effective recognition of the

101 E/CN.4/RES/2000/61, Human Rights Defenders, 27 April 2000, para. 3.102 E/CN.4/2004/94, Promotion and Protection of Human Rights: Human Rights Defenders, 15

January 2005, para. 25.103 Ibid., para. 27 and Summary.104 This decision was taken by the ILO Governing Body in 1995. The Conventions are Nos.

29 (Forced Labour Convention), 87 (Freedom of Association and Protection of the Rightto Organise Convention), 98 (Right to Organise and Collective Bargaining Convention),100 (Equal Remuneration Convention), 105 (Abolition of Forced Labour Convention),111 (Discrimination Convention), 138 (Minimum Age Convention) and 182 (WorstForms of Child Labour Convention), the latter having been added after its adoption in1999. General Report of the Committee of Experts on the Application of Conventions andRecommendations, 2001, 89th Session, para. 62.


right to collective bargaining.105 The principle thus corresponds to thesubject matters of the two ILO conventions of primary interest fortrade unions and other NGOs, namely the Freedom of Association andProtection of the Right to Organise Convention (No. 87) of 1948 and theRight to Organise and Collective Bargaining Convention of 1949 (No. 98).

The Freedom of Association and Protection of the Right to OrganiseConvention has been ratified by 142 states.106 It protects not only therights of individual workers and employers to establish and join orga-nisations, but also the rights of workers’ and employers’ organisa-tions.107 Article 3 reads:

Workers’ and employers’ organisations shall have the right to draw up theirconstitutions and rules, to elect their representatives in full freedom, to organ-ise their administration and activities and to formulate their programmes.108

The ILO Committee of Experts on the Application of Conventions andRecommendations has stated that in order for the right to draw up aconstitution and rules to be fully guaranteed, national legislationshould lay down formal requirements only as regards trade union con-stitutions, and constitutions should not be subject to prior approval atthe discretion of the public authorities.109 The right of workers’ andemployers’ organisations to organise their administration and activitiesand formulate their programmes includes, inter alia, the right to holdtrade union meetings, the right of trade union officers to have access toplaces of work, the right to strike and, in general, any activity involvedin the defence of members’ rights.110 In practice, the difficulties most

105 ILO Declaration on Fundamental Principles and Rights at Work, 86th Session,June 1998, para. 2.

106 As of October 2004. Information obtained at the ILO database ILOLEX atwww.ilo.org/ilolex/english/newratframeE.htm.

107 This part of the study focuses on the existence of organisation rights in internationallaw, rather than on the material content of rights. For a thorough examination of thematerial content of the right of workers to freedom of association, see Petra HerzfeldOlsson, Facklig f oreningsfrihet sommansklig rattighet (TheWorkers’ Freedom of Association as aHuman Right), Uppsala: Iustus Forlag, 2003.

108 The convention is co-ordinated with ICCPR and its Article 22 on the right to freedomof association through a provision in ICCPR Article 22(3), stating that nothing inArticle 22 of ICCPR shall authorise state parties to the ILO Convention on the Freedomof Association and Protection of the Right to Organise Convention to take legislativemeasures which would prejudice the guarantees provided for in that Convention.

109 Report of the Committee of Experts on the Application of Conventions andRecommendations, Freedom of Association and Collective Bargaining, International LabourConference, 81st session, Geneva, 1994, para. 109.

110 Ibid., para. 128.


frequently encountered in national legislation concern restrictions orprohibition of political activities and the right to strike.111 Other organ-isation rights enunciated in the Freedom of Association and Protectionof the Right to Organise Convention include the right of workers’ andemployers’ organisations not to be liable to be dissolved or suspendedby administrative authority (Article 4) and the right of these organisa-tions to establish or join federations (Article 5).

The rights-holding organisations are also subjected to obligationsunder the Convention. According to Article 8, workers and employersand their respective organisations shall respect the law of the land inexercising the rights provided for in the Convention:

The general obligation of the contracting parties is formulated in Article 1: EachMember of the International Labour Organisation for which this Convention isin force undertakes to give effect to the following provisions.

The general obligation in Article 1 is reflected in Article 8(2), stating that‘the law of the land shall not be such as to impair, nor shall it be soapplied as to impair, the guarantees provided for in this Convention’.More specific obligations are included in Article 3(2), according towhich the public authorities shall refrain from any interference whichwould restrict the rights to draw up constitution and rules, etc. underpara. 1, and in Article 7, which provides that the acquisition of legalpersonality by workers’ and employers’ organisations shall not be sub-ject to conditions which would restrict the application of the rightsguaranteed by Articles 2, 3 and 4 of the Convention.

The Right to Organise and Collective Bargaining Convention of 1949(No. 98) includes a mixture of, on the one hand, provisions phrased asindividual or organisation rights, and, on the other, provisions contain-ing more or less detailed instructions for contracting states to establishmachinery and take other measures to promote the objectives formu-lated in the Convention. The direct rights formulated deal with differ-ent aspects of the right to organise. Under Article 2, ‘workers’ andemployers’ organisations shall enjoy adequate protection against anyacts of interference by each other or each other’s agents or members intheir establishment, functioning or administration’. Paragraph 2 of thesame Article provides examples of acts of interference, such as thosewhich are designed to promote the establishment of workers’ organisa-tions under the domination of employers or employers’ organisations.

111 Ibid., para. 57.


Article 3 provides that state parties shall establish ‘machinery appro-priate to national conditions’, where necessary, for the purpose ofensuring respect for the right to organise. The Committee of Expertshas stated that, in order to ensure that the measures are effective inpractice, ‘national legislation should explicitly lay down these substan-tive provisions, as well as appeals and sanctions in order to guaranteetheir application’.112

A convention of particular interest to organisations of workers andemployers, although it is not one of the eight fundamental ILOConventions, is the Tripartite Consultation Convention of 1976 (No. 144).States which become parties to the Convention undertake to establishprocedures for consultationswithworkers’ and employers’ organisationsin relation to different ILO activities, such as reporting on the imple-mentation of ILO Conventions and proposals for the denunciation ofratified Conventions, on a yearly or more frequent basis (Article 5).113

The Articles are not formulated as direct organisation rights, but ratheras obligations undertaken by state parties. Other conventions includeobligations of a similar kind, for example the Equal RemunerationConvention of 1951 (No. 100), which provides that ‘Each Membershall co-operate as appropriate with the employers’ and workers’organisations concerned for the purpose of giving effect to the provi-sions of this Convention’.

The question of evidence of a legal obligation on state parties towardsthe rights-holding organisations on the international plane is some-what special in the case of ILO conventions. Although workers’ andemployers’ organisations do not have direct access to a tribunal whichcan adopt legally binding decisions, but only to a complaints mechan-ism, it should be kept in mind that the ILO is a tripartite body, whererepresentatives of workers’ and employers’ organisations participate onan equal footing with state representatives in the work of the ILO,including in the drafting of legal instruments.114 The traditional inter-national–national divide of international law, according to which thedomain of private organisations is the domestic plane and nationallegislation, therefore does not seem to describe the area of internationallabour law appropriately. Another factor of interest to the question of

112 Ibid., para. 232.113 See also Consultation Recommendation No. 113 of the ILO General Conference, 44th

session, 1960.114 See section 7.3.


international legal obligation towards workers’ and employers’ organ-isations is that all member states of the ILO are considered bound by atleast the basic rights related to the freedom of association and collectivebargaining, irrespective of whether they have ratified the conventionson these subjects.

As for the international supervision of compliance with the rights ofworkers’ and employers’ organisations, there are two categories ofprocedures which may be actualised.

First, the regular system of supervision includes the submission of govern-ment reports and their examination. According to Article 22 of the ILOConstitution, each of the members agrees to make an annual report tothe ILO on the measures which it has taken to give effect to the provi-sions of conventions to which it is a party. The report shall be commu-nicated to representative organisations of workers and employers(Articles 3, 23).

Secondly, the special procedures for supervision (i.e. those for specificallegations) include three different mechanisms, of which two areaccessible for organisations of workers and employers. Article 24 per-mits an industrial association of employers or workers to make aso-called ‘representation’ to the ILO claiming that a given memberstate has failed to apply an ILO Convention to which it is a party. Afterthe examination of complaints by an ad hoc committee, the GoverningBody considers the report in private.115 It may decide to publish thereport or to initiate a complaint under Article 26 of the Constitution.After a procedure of examination involving a commission of inquiry,the complaint may eventually be referred by the government(s) con-cerned to the ICJ for final decision.116 The Article 26 procedure, which isalso accessible to member states, has only seldom been used, and hasnever resulted in a decision by the ICJ.117

In addition, the International Labour Conference set up two new pro-cedures in the 1950s, since the failure of many states to ratifyConventions Nos. 87 and 98 made it impossible to supervise their appli-cation under the other mechanisms. One of these is the Fact-Finding andConciliation Commission on Freedom of Association, which examines

115 For details of this procedure, see the Standing Orders Concerning the Procedure for theExamination of Representations under Articles 24 and 25 of the Constitution of the InternationalLabour Organization.

116 See further Articles 27–34 of the ILO Constitution.117 One example of a complaint submitted by workers’ delegates is GB.281/8, Complaint

Concerning the Non-Observance by Colombia, June 2001.


complaints referred to it by the ILO Governing Body. The Commission isessentially an investigatory body, but may also examine the possibilitiesof settling problems by agreement. Itmay examine complaints regardingstates which have or have not ratified the ILO conventions on freedom ofassociation; in the latter case, however, onlywith the consent of the stateconcerned.118 The Commission has only rarely been convened.119

More importantly, complaints of alleged breaches of trade unionrights are examined by the Committee on Freedom of Association,which was established in 1951 as a tripartite body following a decisionby the ILO Governing Body.120 This procedure is more elaboratelydescribed later in this book.121 The Committee receives complaintsconcerning ILO member states which may or may not have ratifiedthe ILO’s freedom of association conventions.122 The Committee canrecommend an examination by the Governing Body, which may com-municate the Committee’s conclusions to the government concerned.

The general question of direct applicability of the rights in the ILOLabour Conventions has been addressed by the Committee of Experts,which has stated that ‘Most of the Conventions do not consist of provi-sions directly prescribing to a citizen that he shall do or leave undone aparticular act, but are rather addressed to the country as such, andoblige it to deal with a particular question in a particular way’.123 Theorganisation rights in the Freedom of Association and Protection of theRight to Organise Convention and the Right to Organise and CollectiveBargaining Convention are, however, relatively specific in their char-acter compared to provisions of a more programmatic character in

118 The ILO Conventions on freedom of association include, apart from the abovedescribed Conventions Nos. 87 and 98, No. 11 (Right of Association, 1921), No. 135(Workers’ Representatives Convention, 1971), No. 141 (Rural Workers’ OrganisationsConvention, 1975), No. 151 (Labour Relations Convention) and No. 154 (CollectiveBargaining Convention, 1981).

119 Report of the Committee of Experts on the Application of Conventions andRecommendations, Freedom of Association and Collective Bargaining, International LabourConference, 81st session, Geneva, 1994, paras. 17–18. According to the ILO website(at www.ilo.org/public/english/standards/norm/enforced/foa/index.htm), it had onlyexamined six cases as of November 2004.

120 ILO Law on Freedom of Association: Standards and Procedures, Geneva: International LabourOffice, 1995, p. 128.

121 See section 5.2.122 The procedures for examining the complaints are, however, different depending on

whether the member state which is criticised has ratified the conventions or not, seeILO Law on Freedom of Association, p. 129.

123 International Labour Conference, 47th Session, General Report of the Committee of Expertson the Application of Conventions and Recommendations, 1963, para. 22.


other conventions – for instance, the Social Policy Convention of 1947(No. 82).124 It is clear that the obligations of contracting states underboth Conventions are absolute, as the provisions are not programmaticor progressive. Still, both conventions include provisions specificallyaddressed to the problem of incompatibility of national law with inter-national law, which seems to reflect the intention of the GeneralConference of the ILO not to make the conventions directly applicable.In the case of the Right to Organise and Collective BargainingConvention, this assumption is supported by the Committee ofExperts’ statement that national ‘legislation should explicitly lay downthese substantive provisions’.125

It can be concluded that the evidence of an international legal obliga-tion of ILOmember states towards the holders of the organisation rightsguaranteed by the ILO conventions is relatively strong. The rights arespecific to their character and correspond to an absolute and immediatelegal obligation. The organisation rights set forth are connected with anumber of different procedures for supervision. Although the proce-dures usually do not lead to binding decisions, complaints made byorganisations of workers or employers in accordance with Article 24of the ILO Constitutionmay eventually – at least hypothetically – lead toa decision by the ICJ. This fact, taken together with the ILO tripartitestructure and the practice of examining of complaints concerning stateswhich have not ratified the Conventions on Freedom of Association,underline the international obligation towards the rights-holders.126

The Aarhus Convention

The Convention on Access to Information, Public Participation inDecision-Making and Access to Justice in Environmental Matters wasadopted in 1998 by the Fourth Ministerial Conference ‘Environment forEurope’ of the UN Economic Commission for Europe and entered intoforce in October 2001.127 The Convention, which is also known as the

124 But there are also, on the other hand,more specific conventions, e.g., the Prevention ofMajor Industrial Accidents Convention (No. 174, 1993).

125 Report of the Committee of Experts on the Application of Conventions andRecommendations, Freedom of Association and Collective Bargaining, International LabourConference, 81st session, Geneva, 1994, para. 232.

126 In addition, a withdrawal by a state from the ILO does not cancel the obligations of astate arising from ratification of a convention, ILO Constitution, Article 1(5).

127 The Convention was adopted in Aarhus, Denmark, on 25 June 1998, see ECE/CEP/43,21 April 1998.


Aarhus Convention, links environmental rights with human rights byfocusing on the interaction between public authorities and the public ina democratic context. While other environmental treaties adopted duringthe 1990s formulate participatory rights for NGOs and other parts of civilsociety as regards certain specified fields of environmental law – such as tocombat desertification – the Aarhus Convention deals with public partici-pation as such.128 In the perspective of a study on the legal status of NGOsin international law, the Convention is therefore of particular interest:129

Article 1 of the Convention clarifies the objective of the treaty:

In order to contribute to the protection of the right of every person of presentand future generations to live in an environment adequate to his or her healthand well-being, each Party shall guarantee the rights of access to information,public participation in decision-making, and access to justice in environmentalmatters in accordance with the provisions of this Convention.

The twomain addressees of rights under the Convention are ‘the public’and ‘the public concerned’. These two concepts are both defined in theConvention as inclusive of NGOs. ‘The public’ is specified as ‘one ormorenatural or legal persons, and, in accordance with national legislation orpractice, their associations, organizations or groups’. ‘The public con-cerned’ is defined as ‘the public affected or likely to be affected by, orhaving interest in, the environmental decision-making; for the purposesof this definition, non-governmental organizations promoting environ-mental protection and meeting any requirements under national lawshall be deemed to have an interest’.130 In other words, NGOs whichpromote environmental interests are regarded as legitimate spokesper-sons of the public and holders of all rightswhich the Convention bestowson ‘the public’ and ‘the public concerned’, irrespective of their connec-tion to the particular environmental matter at stake.

128 See, e.g., the UNConvention to Combat Desertification (1994), Articles 3(c), 10(f), 13(b),14(2) and 16(d), the Framework Convention on Climate Change, Articles 4(1)(i) and7(2.l), the Convention on Biological Diversity (1992), Article 23(5), and furtherAlexandre Kiss and Dinah Shelton, International Environmental Law, 2nd edn., New York:Transnational Publishers, 2000, pp. 135–137. For a general survey of citizen’s rightof access to information and participation in international law on the environmentand development, see Philippe Sands and Jakob Werksman, ‘Procedural Aspects ofInternational Law in the Field of SustainableDevelopment: Citizens’ Rights’, in KonradGinther et al. (eds.), Sustainable Development and Good Governance, Dordrecht: MartinusNijhoff, 1998, pp. 178–204.

129 For general information on the Aarhus Convention, see Kiss and Shelton, InternationalEnvironmental Law, pp. 156–159.

130 Articles 2(4) and 2(5).


Article 3 contains general provisions. One example of such a provi-sion of particular interest for NGOs is Article 3(4):

each Party shall provide for appropriate recognition of and support to associa-tions, organizations or groups promoting environmental protection and ensurethat its national legal system is consistent with this obligation.

It can be observed that this provision does not explicitly state rights forNGOs and groups, but expresses the obligations of state parties inrelation to these actors. However, the focus of this provision on theobligations of state parties should be seen in the light of the explicitmention of the overarching rights of access to information, publicparticipation in decision-making and access to justice in environmentalmatters as guaranteed in Article 1.131 As was concluded in section 4.1, aduty on state parties towards an actor has a necessary correlative in theright of the actor towards state parties.132 It is thus clear that the AarhusConvention indeed formulates rights for NGOs, such as the right toappropriate recognition and support by state parties to theConvention under Article 3(4).133

The more specific rights which are bestowed on the ‘public con-cerned’ include the right to be informed at an early stage of environ-mental decision-making procedure of, inter alia, the proposed activity,the nature of possible decisions and the public authority responsiblefor making the decision.134 In the context of environmental decision-making procedures, ‘the public’ shall be allowed to submit comments,information, analyses or opinions that it considers relevant to eachactivity.135 Members of the public shall also have access to administra-tive or judicial procedures to challenge acts and omissions by private

131 Moreover, Article 3 contains a general provision on non-discrimination which isformulated as a right: ‘Within the scope of the relevant provisions of this Convention,the public shall have access to information, have the possibility to participate indecision-making and have access to justice in environmental matters withoutdiscrimination as to citizenship, nationality or domicile and, in the case of a legalperson, without discrimination as to where it has its registered seat or an effectivecentre of its activities.’

132 See section 4.1.133 See also Ebbesson, who notes that ‘while formally addressed to states, these

international norms are ultimately directed at individuals through the intermediaryof national institutions’, Jonas Ebbesson, ‘The Notion of Public Participation inInternational Environmental Law’, 8 Yearbook of International Environmental Law(1997), p. 55.

134 Article 6(2 a–c). 135 Article 6(7).


persons and public authorities which contravene provisions of thenational law relating to the environment.136

The rights-based approach of the Convention is clearly expressedin Article 1, cited above. Article 3 specifies the obligation of state partiesin an absolute manner. The state parties to the Convention ‘shall’,for instance, take the necessary legislative, regulatory and othermeasures and provide for appropriate recognition of and support toassociations, organisations or groups promoting environmental protectionand ensure that its national legal system is consistent with thisobligation. In the implementation guide to the Aarhus Convention, itis observed that:

Whereas most multilateral environmental agreements cover obligations thatParties have to each other, the Aarhus Convention covers obligations thatParties have to the public. It goes further than any other convention in imposingclear obligations on Parties and public authorities towards the public as far asaccess to information, public participation and access to justice areconcerned.137

In comparing obligations that state parties have vis-a-vis each other withobligations that they have to the public, the implementation guideexpresses rather clearly that the obligations state parties have undertheAarhus Convention towards the public, includingNGOs, are intendedto lie on the international level, thus creating corresponding interna-tional rights. That the Convention creates rights for NGOs directly underinternational law is also supported by the establishment of a compli-ance mechanism accessible for NGOs. The Compliance Committeewhich has been established under Article 15 of the Convention receivescommunications regarding state parties’ compliance with theConvention from, inter alia, NGOs.138 If the Committee determines thatthe state party concerned is or has been failing to comply with theConvention, it can recommend the Meeting of State Parties to takedifferent measures, such as provide advice, make recommendations,issue declarations of non-compliance, issue cautions, and/or suspendthe special rights and privileges accorded to the party concerned under

136 Article 9(3).137 Economic Commission for Europe, The Aarhus Convention: An Implementation Guide,

ECE/CEP/72, United Nations Sales Publication, 2000, p. 1.138 ECE/MP.PP/2/Add.8, Report of the First Meeting of the Parties, Addendum, Decision I/7, Review of

Compliance, 2 April 2004. The procedure set up according to this decision is furtherdescribed in section 5.3.


the Convention.139 Although the compliance mechanism is of a quasi-judicial character, it is thus relatively strong. State parties also under-take to submit reports on their implementation of the Convention tothe Meeting of State Parties, which reviews these reports.140

It can thus be concluded that the Aarhus Convention creates rights forNGOs directly under international law. These rights include the right torecognition of and support to NGOs promoting environmental protec-tion, the right to access to information, the right to participation indecision-making and the right to access to justice in environmentalmatters. The Aarhus Convention seems to be another step towards agrowing recognition of the importance of public participation in inter-national environmental law.141 Agenda 21 had already recognised that‘non-governmental organizations play a vital role in the shaping andimplementation of participatory democracy’ and stated that ‘the fullestpossible communication and cooperation between internationalorganizations, national and local governments and non-governmentalorganizations should be promoted in institutions mandated, and pro-grammes designed to carry out Agenda 21’.142

The European Convention on the Recognition of the LegalPersonality of International Non-Governmental Organisations

The European Convention on the Recognition of the Legal Personality ofInternational Non-Governmental Organisations was adopted by theCouncil of Europe in 1986 and entered into force on 1 January1991.143 It still has only ten state parties.144 According to Article 1 of

139 ECE/MP.PP/2/Add.8, Report of the First Meeting of the Parties, Addendum, Decision I/7, Review ofCompliance, 2 April 2004, paras. 18 and 37.

140 Articles 5(4) and 10(2).141 See, e.g., Agenda 21, A/CONF.151/26, Annex II, Report of the United Nations Conference on

Environment and Development, 1992, para. 23.2 (on ‘broad public participation indecision-making’ as ‘One of the fundamental prerequisites for the achievement ofsustainable development’); Ebbesson, ‘The Notion of Public Participation’, pp. 51 ff.,Daniel Bodansky, ‘The Legitimacy of International Governance: A Coming Challengefor International Environmental Law?’, 93 AJIL (1999), pp. 617–619; and Philippe Sandsand Jakob Werksman, ‘Procedural Aspects of International Law in the Field ofSustainable Development: Citizens’ Rights’, in Konrad Ginther et al. (eds.), SustainableDevelopment and Good Governance, Dordrecht: Martinus Nijhoff, 1998, pp. 178–204.

142 Agenda 21, A/CONF.151/26, II, Report of the United Nations Conference on Environment andDevelopment, 1992, paras. 27(1) and (4).

143 ETS No. 124.144 As of 23 October 2004 (according to the Council of Europe Treaty Office at http://

conventions.coe.int/Treaty/EN/CadreListeTraites.htm).


the Convention, it applies only to associations, foundations and otherprivate institutions which (a) have a non-profit-making aim of interna-tional utility, (b) have been established by an instrument governed bythe internal law of a state party, (c) carry on their activities with effect inat least two states, and (d) have their statutory office in the territory of astate party and the central management and control in the territory ofthat state or of another state party.145 The requirement that the NGOcarries out its activities in at least two states refers to states in general;these need not be state parties of member states of the Council ofEurope.146 The conditions must be met throughout the period of theNGO’s activity in a state party.147

Article 2 of the Convention provides that

1. The legal personality and capacity, as acquired by an NGO in the Party

in which it has its statutory office, shall be recognised as of right in

the other Parties.

2. When they are required by essential public interest, restrictions,

limitations or special procedures governing the exercise of the rights

arising out of the legal capacity and provided for by the legislation

of the Party where recognition takes place, shall be applicable to

NGOs established in another Party.

According to the Explanatory Report on the Convention, no specialprocedure has to be followed by anNGO in order for its legal personalityand capacity to be recognised in the other state parties, provided that itmeets the conditions in Article 1.148 The principle of the statutory officemeans that the NGOwill have the same legal capacity and personality inall the contracting states as it has in the state where the statutory officeis located. There were two reasons for basing the legal personality andcapacity of an NGO on the law of the state where it has its statutoryoffice. First, it was held that the NGO hadmanifested a wish to be subjectto a given system of law in deciding on its statutory office, and thatthis wish should be respected. Secondly, the principle chosen made

145 Concerning these conditions, see section 1.3.146 Explanatory Report on the European Convention on the Recognition of the Legal Personality of

International Non-Governmental Organisations, Strasbourg, 1986, para. 11.147 The Explanatory Report states: ‘Failure to satisfy any of these conditions automatically

removes the right to invoke the Convention.’ Ibid., para. 24.148 Ibid., para. 13.


it possible to avoid any break in continuity in the legal personality of anNGO if its real seat changed.149

Article 3 specifies the proof of the NGO’s existence to be presented tothe authorities of the state in which the NGO wishes to be recognised.This evidence includes the NGO’s memorandum and articles of associa-tion or other basic constitutional instruments, accompanied by docu-ments establishing administrative authorisation, registration or anyother form of publicity in the state which granted the legal personalityand capacity.150

According to Article 4 of the Convention, the application of an NGOmay be excluded only if the NGO which invokes it

(a) contravenes national security, public safety, or is detrimental to theprevention of disorder or crime, the protection of health or morals,or the protection of the rights and freedoms of others; or

(b) jeopardises relations with another State or the maintenance ofinternational peace and security.

Article 4 operates independently of Article 1, which means that anNGO can fall under Article 4 even if the conditions in Article 1 aremet.151

Reservations to the Convention may not be made, but it can bedenounced at any time.152

Although it is clear that the Convention establishes legally bindingobligation for the states which become parties to it, its significance isstill limited because of the small number of state parties. It should alsobe observed that NGOs do not have access to any complaints procedurein cases of breach of the Convention. Nevertheless, the Convention isinteresting as a demonstration of how the question of the legal status ofNGO can apply outside the state where it is based.

Council of Europe Fundamental Principles on the Statusof Non-Governmental Organisations in Europe

The Fundamental Principles on the Status of Non-GovernmentalOrganisations in Europe were adopted by the participants in a seriesof multilateral meetings held in Strasbourg during 2001 and 2002. Thefoundation of the Principles had already been laid in an earlier docu-ment: the Guidelines to Promote the Development and Strengthening

149 Ibid., para. 14. 150 See Explanatory Report, paras. 19–22.151 Ibid., paras. 23–24. 152 Articles 9, 10.


of NGOs in Europe of 1998.153 In a decision in April 2003, the Deputiestook note with appreciation of the Fundamental Principles andinstructed the Secretariat to give them thewidest possible circulation.154

The Preamble of the Fundamental Principles refers to the EuropeanConvention on the Recognition of the Legal Personality of InternationalNon-Governmental Organisations discussed above and to the desirabil-ity of enlarging the number of its contracting parties. The FundamentalPrinciples can be seen as away to promote such a development, but at thesame time theConvention and the Principles have in someways differentscopes and objectives. While the Convention on the Recognition of theLegal Personality of International Non-Governmental Organisationsdeals with international NGOs which have legal personality undernational law, the Fundamental Principles on the Status of Non-Governmental Organisations in Europe seek to promote national legisla-tion which, inter alia, assists the setting up of NGOs and lays downarrangements for the acquisition of legal personality, regardless ofwhether the NGO is national or international in character.155

Apart from referring to the Convention on Legal Personality, thePreamble of the Fundamental Principles includes several statementswhich can put the Principles into context. For example, the Preamblementions the importance of NGOs in the development, realisation andcontinued survival of democratic societies, and states that NGOs makean invaluable contribution to the achievement of the aims and princi-ples of the UN Charter and of the Statute of the Council of Europe. ThePrinciples also recognise that the operation of NGOs entails responsi-bilities as well as rights, among which the rights to freedom of associa-tion and to peaceful assembly are specifically mentioned.

The operative part of the Fundamental Principles begins by layingdown four basic principles:

1. That NGOs come into being through the initiative of individuals orgroups of persons. That the national legal and fiscal frameworkapplicable to them should therefore permit and encourage thisinitiative.

2. That all NGOs enjoy the right to freedom of expression.

153 Fundamental Principles on the Status of Non-Governmental Organisations in Europe andExplanatory Memorandum, Council of Europe, May 2003, Explanatory Memorandum,paras. 6–7.

154 CM/Del/Dec(2003)837, Decisions Adopted, Item 2.3, 17 April 2003.155 The definition of ‘NGO’ formulated in the Principles has been discussed in section 1.3.


3. That NGOs with legal personality should have the same capacities asare generally enjoyed by other legal persons and be subject to the sameadministrative, civil and criminal law obligations and sanctionsgenerally applicable to them.

4. That any act or omission by a governmental organ affecting an NGOshould be subject to administrative review and be open to challenge inan independent and impartial court with full jurisdiction.156

On the basis of the four main principles, rather detailed provisions areformulated on a number of subjects relating to NGOs, such as establish-ment, statutes, membership, legal personality, property and fund-raisingand transparency and accountability.157

My purpose inmentioning the Fundamental Principles in the contextof the international rights of NGOs is not to discuss the various princi-ples in detail. The Principles are declared in a document which is of anon-binding character and do not in themselves establish internationalrights for NGOs. However, the elaboration of the document and theacceptance of the Principles expressed by the meeting of the Deputiesprovides support for the supposition that customary law may be devel-oping among Council of Europe member states with the effect of recog-nising basic international rights for NGOs (thus not only for theirmembers), such as the right to freedom of association and the right tofreedom of expression. From such a point of view, the Principles addsupport to rights expressed in other European and international instru-ments, such as the European Convention on Human Rights, theEuropean Convention on the Recognition of the Legal Personality ofInternational Non-Governmental Organisations and the ICCPR.

The European Convention on Human Rights

The European Convention for the Protection of Human Rights andFundamental Freedoms (ECHR) does not contain any explicit organisa-tion rights.158 The rights provisions are phrased so that rights arebestowed on ‘everyone’ or on ‘men andwomen’, while the fundamentalfreedoms include the expression ‘no one’. Nevertheless, several rightsand freedoms have aspects of organisation rights. This is evidenced bythe fact that organisations have instituted cases before the Commissionand the Court. As applications are declared admissible only if the victimrequirement is met – i.e. if the applicant has been the victim of a

156 Fundamental Principles on the Status of Non-Governmental Organisations in Europe, paras. 6–9.157 Ibid., paras. 10–78. 158 ETS No. 005.


violation of one of the rights set out in the Convention – it can beconcluded that the Commission and the Court have regarded the appli-cant organisations as rights-holders in all cases which have beendecided on the merits.159

The rights to freedom of assembly and association

Article 11(1) of the Convention provides that:

Everyone has the right to freedom of peaceful assembly and to freedom ofassociation with others, including the right to form and to join trade unionsfor the protection of his interests.

The Court has heard cases regarding both the right to freedom of peace-ful assembly and the right to freedom of association. One example of acase where the organisation right to peaceful assembly was at issue isPlattform ‘Arzte fur das Leben’ v. Austria.160 Although the Court did not finda violation of the right to peaceful assembly under Article 11 in thiscase, the fact that it was decided on the merits and the reasoning of theCourt demonstrates that the right to freedom of peaceful assembly canbe held by organisations. The Court stated that the right implies both aduty on the part of the state not to interfere and a positive obligation totake reasonable and appropriate measures to enable individuals andassociations to enjoy the right to peaceful assembly. Furthermore, theright has a horizontal dimension in that it requires positivemeasures tobe taken in the sphere of relations between individuals and privateentities.

The right to freedom of association also includes elements of organi-sation rights. Harris, O’Boyle andWarbrick observe that the ‘association’mentioned in the Article ‘is capable of enjoying fundamental rightsagainst the state and will generally have rights and owe duties to itsmembers’.161 The notion of ‘association’ has an autonomous meaningunder the Convention, meaning that Article 11 can also be called intoconsideration in relation to an entity which is not recognised as an

159 See Article 34 of the Convention and section 5.3, which includes a survey of casesbrought by NGOs before the Court.

160 Plattform ‘Arzte fur das Leben’ v. Austria, 21 June 1988 (see also section 5.3). Judgementsand decisions of the Convention monitoring bodies which are accessible in theCouncil of Europe HUDOC database (at http://hudoc.echr.coe.int/hudoc/) are referredto by title and date only. If the cases are not included in the database, reference ismadeto a publication.

161 D. J. Harris, M. O’Boyle and C. Warbrick, Law of the European Convention on Human Rights,London: Butterworth, 1995, p. 421.


association in national law.162 The Commission has, however, formu-lated something like a lowest common denominator by stating that thenotion of ‘association’ presupposes ‘a voluntary grouping for a commongoal’.163 The fact that the range of organisations protected under theright to freedom of association is wide is demonstrated by the fact thatorganisations of many different kinds – political parties, religious con-gregations and organisations for the promotion of certain ideals orcultural interests, etc. – have been the subject of consideration underArticle 11.164 Professional associations which are instituted by law andwhich perform public functions have, however, not been considered asassociations by the Convention monitoring bodies within the meaningof Article 11.165 Trade unions are expressly mentioned in the Article,and such organisations have been at issue in several cases.166

As to the material content of the organisation right to freedom ofassociation, anabsoluteobligationonstateparties toprovidea legal frame-work for every form of association is outside the scope of Article 11.167

On the other hand, Van Dijk and van Hoof assert that there is animplied obligation to ensure that national law assigns at least sufficientlegal status for an association for it to ‘stand up effectively for theinterests of their members’.168 The right to form an association is men-tioned expressly only as regards trade unions. However, since the Courthas stated that trade union freedom is only ‘one form or a special aspectof freedom of association’, the right to form an association is implied in

162 P. van Dijk and G. J. H. van Hoof, Theory and Practice of the European Convention on HumanRights, 3rd edn., TheHague: Kluwer Law International, 1998, p. 591, andHarris, O’BoyleandWarbrick, Law of the European Convention, p. 421. According to Alkema, ‘association’is a notion which comprises ‘in principle, all kinds of legal persons’, which should beinterpreted to include any corporate body irrespective of its status in domestic civillaw. Evert Alkema, ‘Freedom of Associations and Civil Society’, 34 A Yearbook of theEuropean Convention on Human Rights (1994), pp. 56 and 71.

163 Opinion of the Commission in the case of Young, James andWebster v. the United Kingdom,14 December 1979, para. 167, p. 36, in Digest of Strasbourg Case-Law Relating to theEuropean Convention on Human Rights, 3, Cologne: Carl-Heymann-Verlag, 1984, p. 506.

164 Court judgements which originate in applications brought by non-profit-making legalentities include: Grande Oriente d’Italia di Palazzo Giustiniani v. Italy, 2 August 2001;Freedom and Democracy Party (OZDEP) v. Turkey, 8 December 1999; Socialist Party and Othersv. Turkey, 25 May 1998; United Communist Party of Turkey and Others v. Turkey, 30 January1998; National Union of Belgian Police v. Belgium, 27 October 1975; and Swedish EngineDrivers’ Union v. Sweden, 6 February 1976. See also section 5.3.

165 See, e.g., the case of Le Compte, Van Leuven and De Meyre v. Belgium, 23 June 1981,paras. 64–65.

166 See below. 167 Harris, O’Boyle and Warbrick, Law of the European Convention, p. 423.168 Van Dijk and van Hoof, Theory and Practice of the European Convention, p. 600.


the right to freedom of association in general.169 Once the associationhas been established, the state’s obligation ismainly negative – i.e. it hasthe duty not to interfere with the activities of an association – andinfringements of the rights to freedom of association and assemblymust be justifiable under Article 11(2).170

A general positive obligation to provide organisations with locus standi

in domestic courts has been rejected by the Commission.171 The appli-cant association was refused locus standi for an administrative courtaction against a decision on authorisation for the construction of anuclear power station. The association invoked grounds of environmen-tal protection and public health. The Commission found that the claimdid not involve an assertion of the association’s own rights and statedthat the right to freedom of association does not include or imply ageneral right to seize the courts in allmatters falling within the ambit ofthe statutory activities of organisations irrespective of the existence of alegal interest of their own.172

As has already been mentioned, the right to form and join tradeunions is explicitly included in Article 11.173 Three examples of courtjudgements which originated in applications filed by trade unions areNational Union of Belgian Police v. Belgium, Swedish Engine Drivers’ Union v.Sweden, and Wilson, National Union of Journalists and Others v. the UnitedKingdom, which all concerned the right to freedom of association.174

According to the Commission, the right to form trade unions under

169 National Union of Belgian Police v. Belgium, 27 October 1975, para. 38. This principle wasconfirmed in the case of Young, James andWebster v. the United Kingdom, 13 August 1981,para. 52.

170 Article 11(2) reads: ‘No restrictions shall be placed on the exercise of these rights otherthan such as are prescribed by law and are necessary in a democratic society in theinterests of national security or public safety, for the prevention of disorder or crime,for the protection of health or morals or for the protection of the rights and freedomsof others.’

171 X. Association v. The Federal Republic of Germany, 26 D&R (1982), pp. 270–271.172 See, by contrast, the case of Canea Catholic Church v. Greece, 16 December 1997, which

concerned the right to a fair trial for organisations which seek to defend their owninterests.

173 In the Young, James and Webster case, the Court recalled that ‘the right to form and tojoin trade unions is a special aspect of freedom of association’, referring to the NationalUnion of Belgian Police judgement of 27 October 1975. Young, James and Webster v. TheUnited Kingdom, 13 August 1981, para. 52.

174 National Union of Belgian Police v. Belgium, 27 October 1975; Swedish Engine Drivers’ Unionv. Sweden, 6 February 1976; andWilson, National Union of Journalists and Others v. the UnitedKingdom, 2 July 2002. See also Young, James and Webster v. the United Kingdom, 13 August1981 and A. Union. v. Federal Republic of Germany, 34 D&R (1983), pp. 173–176.


Article 11 involves ‘the right of trade unions to draw up their own rules,to administer their own affairs and to establish and join trade unionfederations’.175 The Court has made it clear that Article 11 also protectsthe right of a union to be heard during collective bargaining, while notguaranteeing the right have a collective agreement concluded.176 Ingeneral, state parties to have a positive obligation to secure the rightof trade unions to strive for the protection of its members’ interests. Forexample, the Court has judged that a state party which permits employ-ers to use financial incentives to induce employees to surrender impor-tant union rights fails in its positive obligation under Article 11.177 TheCourt’s case-law also includes cases which actualise the relationshipbetween a trade union and its members and the state’s obligation toregulate these private relationships. In this context, the so-called ‘nega-tive freedom of association’ – the right of individuals not to be com-pelled to be a member of an association – has been recognised.178 Ingeneral, it can be observed that the ILO conventions, such as theFreedom of Association and Protection of the Right to OrganiseConvention (No. 87), have been taken into account by the Conventionmonitoring bodies in their interpretation of Article 11.179

The right to freedom of expressionThe right to freedom of expression is guaranteed by Article 10(1) of theConvention:

Everyone has the right to freedom of expression. This right shall include free-dom to hold opinions and to receive and impart information and ideas withoutinterference by public authority and regardless of frontiers.

The right to freedom of expression is closely connected with the rightsto freedom of peaceful assembly and freedom of association. For NGOs,

175 Cheall v. the United Kingdom, 42 D&R (1985), p. 185.176 National Union of Belgian Police v. Belgium, 27 October 1975. The Court first expressed the

right to be heard as a right belonging to the members: ‘In the opinion of the Court,it follows that the members of a trade union have a right, in order to protect theirinterests, that the trade union should be heard’, but continued ‘What the Conventionrequires is that under national law trade unions should be enabled . . . to strive for theprotection of the members’ interests’ (para. 39).

177 Wilson, National Union of Journalists and Others v. the United Kingdom, 2 July 2002, para. 48.178 See, e.g., Young, James and Webster v. The United Kingdom, 13 August 1981 and

Gustafsson v. Sweden, 25 April 1996.179 See, e.g., Van der Mussele v. Belgium, 23 November 1983, para. 32 ff. and Sigurdur A.

Sigurjonsson v. Iceland, 30 June 1993, para. 35.


the activities performed as a consequence of the right to function freelyas a separate body will often include the promotion and expression ofcertain values, ideas or opinions. This connection is demonstrated bythe fact that the right to freedom of expression has frequently been atissue in cases brought by non-governmental corporate entities beforethe Commission and the Court. At least nine cases which actualiseissues relating to the right to freedom of expression have been broughtby NGOs before the Court, five of which concern publications or activ-ities in the mass media.180 The cases brought under Article 10 by differ-ent forms of juridical persons clearly demonstrate that the Conventionmonitoring organs accept corporate bodies as victims of violations, andthus holders, of the right to freedom of expression under theConvention.

The right to a fair trial

The right to a fair trial as regards civil proceedings is equally validfor organisations as for individuals. Three examples of cases brought bynon-profit entities are Canea Catholic Church v. Greece, Procola v. Luxembourg,and Ekin Association v. France.181 The case of Apeh Uldozotteinek Szovetsege andOthers v. Hungary is of particular interest to NGOs, as it concerned thequestion whether the ‘right’ to register an association came within thescope of Article 6:

The casewas instituted before the Commission by an unregistered organisation,APEH, and three Hungarian nationals. The organisation had been denied regis-tration by the Supreme Court as its intended name was contrary to the CivilCode. The applicants alleged, in particular, that the proceedings concerning theregistration had been unfair, in breach of Article 6(1) of the Convention.

180 Informationsverein Lentia & Others v. Austria, 24 November 1993 and 28 November 2002(friendly settlement); Otto-Preminger Institut v. Austria, 20 September 1994; Vereinigungdemokratischer Soldaten Osterreichs and Gubi v. Austria, 19 December 1994; VerenigingWeekblad Bluf ! v. the Netherlands, 9 February 1995; Radio ABC v. Austria, 20 October 1997;Vgt Verein Gegen Tierfabriken v. Switzerland, 28 June 2001; Ekin Association v. France, 17 July2001; and Unabhangige Initiative Informationsvielfalt v. Austria, 26 February 2002. In OpenDoor and Dublin Well Woman v. Ireland, 29 October 1992, the applicant was a not-for-profit company. Other cases which concern the right to freedom of expression andwhich originated in complaints filed by juridical persons include the cases of TheSunday Times v. the United Kingdom (several judgements); Observer and Guardian v. theUnited Kingdom, 26 November 1991; Bladet Tromsø and Stensaas v. Norway, 20 May 1999;and Bergens Tidende and Others v. Norway, 2 May 2000. See also section 5.3.

181 Canea Catholic Church v. Greece, 16 December 1997; Procola v. Luxembourg, 28 September1995; Ekin Association v. France, 17 July 2001.


The Court recalled that, for Article 6(1), in its ‘civil’ limb, to be applicablethere must be a dispute over a ‘right’ that could be said to be recognised underdomestic law. The outcome of the proceedings must also be directly decisive forthe civil right in question. In the present case, the ‘right’ in dispute was the rightto register an association for the purposes of the Hungarian Associations Act.The Court observed that, according to that Act, associations obtained their legalexistence only by virtue of their court registration. It followed from that rulethat an unregistered association constituted only a group of individuals whoseposition in any civil-law dealings with third parties was very different from thatof a legal entity. For the applicants, it was consequently the applicant associa-tion’s very capacity to become a subject of civil rights and obligations underHungarian law that was at stake in the registration proceedings. In thosecircumstances, the Court found that the proceedings complained of concernedthe applicant association’s civil rights and that Article 6was thus applicable. TheCourt concluded that there had been a violation of Article 6(1) as the principle ofequality of arms had not been respected in the proceedings.182

The right to freedom of religion

This right is protected by Article 9, which provides that:

Everyone has the right to freedomof thought, conscience and religion; this rightincludes freedom to change his religion or belief and freedom, either alone or incommunity with others and in public or private, to manifest his religion orbelief, in worship, teaching, practice and observance.

Although the Commission originally took the position that the right tofreedom of religion and belief was purely individual to its character,183

this position was changed in 1979 with the case of X. and Church of

Scientology v. Sweden:

When a church body lodges an application under the Convention, it does so inreality, on behalf of its members. It should therefore be accepted that a churchbody is capable of possessing and exercising the rights contained in Article 9(1)in its own capacity as a representative of its members.184

The rights to freedom of belief and religion are not restricted tochurches, but can also be held by organisations. In the case of ISKCON

182 Apeh Uldozotteinek Szovetsege and Others v. Hungary, 5 October 2000.183 The Commission’s earlier view was expressed in the case of Church of X v. the United

Kingdom, in which it stated that ‘a corporation being a legal and not a natural person, isincapable of having or exercising the rights mentioned in Article 9, paragraph (1) ofthe Convention’, 29 Collection of Decisions of the European Commission of Human Rights(1969), p. 75. It can be observed that the Commission also excluded the possibility thatthe legal entities possess the right to education under Protocol 1, Article 2.

184 X. and Church of Scientology v. Sweden, 16 D&R (1979), p. 70.


et al. v. the United Kingdom, one of the applicants was a charity registeredin the United Kingdom, the International Society for KrishnaConsciousness Ltd (ISKCON). Although the Commission found that theinterference with ISKCON’s right to freedom of religion could beregarded as ‘necessary in a democratic society’ and declared the appli-cation inadmissible as manifestly ill-founded, it did not question thatISKCON as an organisation was capable of holding such rights.185 Inanother case, Cha’are Shalom Ve Tsedek v. France, the Court found that ‘anecclesiastical or religious body may, as such, exercise on behalf of itsadherents the rights guaranteed by Article 9 of the Convention’, andthat ‘ritual slaughter must be considered to be covered by a rightguaranteed by the Convention, namely the right to manifest one’sreligion in observance, within the meaning of Article 9’.186

However, according to an older case, not all rights under Article 9 canbe held by organisations. In the case of Verein ‘Kontakt-Information-

Therapie’ (KIT) and Siegfried Hagen v. Austria, the Commission stated that:‘Insofar as Article 9 (Art. 9) is concerned, the Commission considers thata distinction must be made in this respect between the freedom ofconscience and the freedom of religion, which can also be exercisedby a church as such.’187 It thus seems that the rights to freedom ofthought and to freedom of conscience are both of a purely individualcharacter, which is logical considering their personal character.

185 Application No. 20490/92, ISKCON and 8 Others v. United Kingdom, 8 March 1994. Theorganisation also claimed violation of, inter alia, its right to peaceful enjoyment ofone’s possessions under Protocol 1, Article 1 taken alone and in conjunction withArticle 14 of the Convention. See also Application No. 20471/92, Kustannus Oy VapaaAjattelija AB, Vapaa-Ajattelijain Liitto – Fritankarnas Forbund RY and Kimmo Sundstrom v.Finland, and van Dijk and van Hoof, Theory and Practice of the European Convention, p. 552.

186 Cha’are Shalom Ve Tsedek v. France, 27 June 2000, paras. 72 and 74. The Court did,however, not find a violation of Article 9 alone or taken togetherwith Article 14 on theprohibition of discrimination, as had been alleged.

187 Application No. 11921/86, Verein ‘Kontakt-Information-Therapie’ (KIT) and Siegfried Hagen v.Austria, para. 1. In the case of Grande Oriente D’italia Di Palazzo Giustiniani v. Italy, theCourt declared that an application brought by an association was inadmissible underArticles 8, 9 and 10, alone and in conjunction with Articles 13 or 14. The caseconcerned a regional law laying down the principles governing appointments topublic offices. The law required candidates for those offices to produce a declarationcertifying that they were not freemasons. Acting through its Grand Master, theassociation complained of the prejudice caused it by the law in question. This decisionmight seem inconsistent with the above cases on freedom of religion. However, as thealleged violation concerned candidates for public office, it is logical that onlyindividuals could be regarded as victims. The association was accepted as applicant asconcerned the right to freedom of association, see judgement of 2 August 2001.


The right to respect for private lifeArticle 8(1) reads: ‘Everyone has the right to respect for his private andfamily life, his home and his correspondence.’ In a decision on inadmis-sibility, the Court has discussed whether a private association may beentitled to protection under Article 8. It stated that:

the question nevertheless ariseswhether the applicant association can claim to be avictim of the alleged violation of its right to respect for its ‘home’ . . . The Courtrecalls that to interpret the words ‘private life’ and ‘home’ as including certainprofessional or business activities or premises would be consonant with the essent-ial object and purpose of Article 8, namely to protect the individual against arbitraryinterference by the public authorities . . . It may therefore be arguable that a legalpersonmay rely on the right to respect for its ‘home’ where the premises, onwhichit carries out its business activities or – in the case of the applicant association – itsactivities with an idealistic goal, are subject to interference.

Thus, although Article 8 may at first sight seem to be of a purelyindividual character, it appears that organisations enjoy the right torespect for their premises.188

The right to peaceful enjoyment of one’s possessionsArticle 1 of the First Protocol to the European Convention protects theright to property. The first sentence of Article 1 reads: ‘Every natural orlegal person is entitled to the peaceful enjoyment of his possessions.’This is the only Convention right which expressly mentions juridicalpersons as holders. The victim requirement stated in Article 34 on thestanding of non-state actors before the Court is equally upheld asregards the right to property, meaning that the property of the legalperson and its individual shareholders or members are seen as separateissues.189 Corporate bodies which have brought cases before theConvention monitoring organs have included a large number of com-panies, but also non-commercial entities such as trade unions andreligious congregations. One example of the latter category is the caseof Holy Monasteries v. Greece, which originated in applications brought byeight Greek Orthodoxmonasteries.190 Accordingly, NGOs have the right

188 Verein Netzwerk v. Austria, Admissibility decision, 29 June 1999.189 Harris, O’Boyle and Warbrick, Law of the European Convention, p. 517.190 Holy Monasteries v. Greece, 9 December 1994. See also, e.g., Canea Catholic Church v. Greece,

16 December 1997 (in which the Court, however, found it unnecessary to examine theallegations regarding the right to property), National Federation of Self-Employed v. TheUnited Kingdom, 15 D&R (1979), pp. 198–203 and Greek Federation of Customs Officerset al. v. Greece, 81-B D&R (1995), pp. 123–129.


to peaceful enjoyment of their possessions under Protocol 1 to theConvention.

The legal nature of rights under the European Convention

In examining the legal nature of organisation rights under theConvention, the standing of NGOs under Article 34 (former Article 25)seems to provide a clear answer to the question. As already mentioned,in order for a private body to have locus standi under Article 34 it is arequirement that the applicant be the victim of a violation of theConvention (‘the victim requirement’). Although the lack of access toan international legal remedy does not mean, in my view, that a rightguaranteed in an international convention is not a right stricto sensu, theestablishment of locus standi for the rights-holder does indeed provideevidence that the state parties have undertaken an international legalobligation towards them.191 NGOs are thus rights-holders under theECHR.

The subject matters of the cases brought by legal persons demon-strate that not only the rights directly connected with associations assuch are held and protected by legal persons. It has not been considerednecessary to go through the possible corporate elements of all the rightsset out in the Convention. Although it is evident that some of the rightscan be held only by individuals, such as the right to physical integrityunder Article 3, other rights which have not been discussed above maywell be held by NGOs or other corporate bodies.

The European Social Charter

The revised Social Charter entered into force in 1999. Just like theformer version, the revised Charter is divided into two parts, of whichPart I is a political instrument expressing that the contracting partiesaccept as their aim to promote the realisation of certain rights andprinciples. By contrast, the introduction to Part II expresses a clearlegal obligation:

The Contracting Parties undertake, as provided for in Part III, to considerthemselves bound by the obligations laid down in the following articles andparagraphs.

191 As a consequence of their rights, NGOs also have the right to just satisfaction underthe Convention. In the case of Comingersoll SA v. Portugal, the Court made it clearthat juridical persons can be afforded non-pecuniary damages, see judgement of6 April 2000.


The system of supervision of the legal rights protected under Part II ofthe Charter includes a reporting system, under which state partiesundertake to report on a regular basis to the European Committee ofSocial Rights, which examines the reports and gives a legal assessmentof these states’ fulfilment of their undertakings. The state reportsand the conclusions of the Committee of Experts are submitted forexamination by the Governmental Committee of the Charter, whichadopts resolutions and issues recommendations requesting states tobring national law and practice in conformity with the Charter. Thereis also a complaints procedure established under the AdditionalProtocol providing for a system of collective complaints, which will bediscussed below.

Most legal rights protected under Part II of the Charter are individualrights. However, the Charter also includes some provisions whichbestow rights on organisations. Some of the clearest examples will bementioned here. This does not exclude the possibility that other rightswhich are mostly held by individuals may under certain circumstancesalso be held by corporate bodies.

Article 3 concerns the right to safe and healthy working conditions.The different undertakings of the provision shall be implemented ‘inconsultation with employers’ and workers’ organisations’. Such consul-tation should take place at both the national level and at the level of theenterprise. According to the European Committee of Social Rights (alsocalled the Committee of Independent Experts), national consultationcan be performed, for example, within tripartite bodies responsible forthe drawing up and amendment of occupational health and safety lawsand for laying down regulations and guidelines. It is, however, suffi-cient if the responsible authority consults workers’ and employers’organisations on a regular basis.192

Article 5 protects the right to organise. According to the provision, thecontracting parties undertake: ‘With a view to ensuring or promotingthe freedom of workers and employers to form local, national or inter-national organisations for the protection of their economic and socialinterests and to join those organisations, . . . that national law shall notbe such as to impair, nor shall it be so applied as to impair, thisfreedom.’ Article 5 protects both the individual right of workers to

192 See, e.g., Committee of Independent Experts, Conclusions XIV-2, the Netherlands,Sweden and the United Kingdom. The requirement of regularity was stated in,e.g., Conclusions V, p. 23, cited in Case Law on the European Social Charter, 1995, p. 26.


establish or join a trade union and the organisation right of the tradeunions thus established to organise and function in the interest of theirmembers.193 The organisation right includes organisational activities,such as the election of officers, the management of funds and theconduct of meetings, as well as the right to function effectively ingeneral.194 Furthermore, the state is obliged to provide protectionagainst reprisals on the ground of trade union activities.195 Tradeunions also have the right under this Article to discipline memberswho, for instance, refuse to take part in lawful strikes, and legislationprohibiting such action would constitute interference with trade unionautonomy in breach of Article 5.196

Article 6 provides that, with a view to ensuring the effective exerciseof the right to bargain collectively, the contracting parties undertake,inter alia, to promote joint consultation betweenworkers and employers(para. 1) and to promote machinery for voluntary negotiations betweenemployers or employers’ organisations and workers’ organisations,with a view to the regulation of terms and conditions of employmentby means of collective agreements (para. 2). The European Court ofHuman Rights has stated in the case of National Union of Belgian Police

that Article 6(1) of the Charter does not provide a material right toconsultation, only an obligation for states to promote consultation.197

Under Article 6(4), the contracting states recognise the right ofworkersand employers to collective action in cases of conflicts of interest,including the right to strike, subject to obligations that might ariseout of collective agreements previously entered into. As the rights are,according to the wording of the provision, bestowed on workers andemployers collectively, it is reasonable to assume the provision alsoprotects organisation rights of workers’ and employers’ organisations.

193 Donna Gomien, David Harris and Leo Zwaak, Law and Practice of the European Conventionon Human Rights and the European Social Charter, Strasbourg: Council of EuropePublishing, 1996, p. 390.

194 Ibid. On the obligation of contracting states to protect trade unions from interferenceon the part of employers, see also Conclusions I, p. 31, as cited in Case Law on theEuropean Social Charter 1995, p. 42.

195 Committee of Independent Experts, Conclusions XIV-1, e.g., Austria, France andNorway.

196 Committee of Independent Experts, Conclusions XIV-1, Austria and France.197 National Union of Belgian Police v. Belgium, 27 October, 1975, para. 38. The Court

commented on Article 6 of the Charter for the sake of interpreting Article 11 ofthe Convention.


The Committee of Social Rights has criticised legislation restricting theright of trade unions to take action to ‘their own’ employer, making itimpossible for them to take action, inter alia, against the companywhichmay hire the workers through an intermediary company.198

The position of workers’ and employers’ organisations, as well asother NGOs, has been considerably strengthened by the AdditionalProtocol Providing for a System of Collective Complaints, whichentered into force in July 1998.199 The organisations provided withthis possibility are (a) certain international organisations of employersand trade unions, (b) other international NGOs with consultative statuswith the Council of Europe and appearing on a special list whichis drawn up for this purpose by the Governmental Committee and(c) representative national organisations of employers and trade unionswithin the jurisdiction of the state against which the complaint hasbeen lodged.200

It is clear that the rights enumerated in Part II of the Charter are notmerely undertakings of contracting states to provide individuals withcertain benefits. The practice of the Chartermonitoring bodies supportsthe conclusion that the Charter also include corporate rights for work-ers’ and employers’ organisations, and the existence of the CollectiveComplaints Procedure further underlines a right–obligation relation-ship on the international plane. However, as the collective complaintprocedure is open also to organisations which have not themselvessuffered a violation of one of the corporate rights in the Charter, notall complainants are rights-holders. Moreover, it should be noted thatthe supervisory bodies of the Charter cannot issue legally binding deci-sions. Instead, the Committee of Independent Experts draws up a reportin which it ‘presents its conclusions’ as to whether the Charter has beensatisfactorily applied.201 The report is passed on to the Committee ofMinisters, which shall adopt a recommendation to the state party con-cerned if the Committee of Independent Experts has found that theCharter has not been satisfactorily applied.202 The value of the proce-dure for organisations whose rights have been violated is thus notparticularly strong.

198 Committee of Independent Experts, Conclusions XIV-1, United Kingdom.199 Additional Protocol to the European Social Charter Providing for a Systemof Collective

Complaints, ETS No. 158.200 See section 5.3. 201 Collective Complaints Protocol, Article 8(1).202 Articles 8(2) and 9(1).


The American Convention on Human Rights

Just as its European counterpart, the American Convention on HumanRights uses the word ‘everyone’ as the holder of many of the rightsguaranteed.203 As has been demonstrated above, it is clear that NGOsand other legal entities may be rights-holders under the EuropeanConvention. However, juridical persons have not been recognised asrights-holders under the American Convention.

The provision on locus standi before the Inter-American Commissionon Human Rights grants standing to ‘Any person or group of persons, orany nongovernmental entity legally recognized in one ormorememberstates of the Organization’ (Article 44 of the Convention). It is thus clearthat NGOs may submit petitions to the Commission. Petitions are oftensubmitted by NGOs or by other physical or juridical persons on behalf ofone or several alleged victims.204 Legal entities may, however, not sub-mit petitions on their own behalf. This is due to Article 1(2) whichprovides that: ‘For the purposes of this Convention, ‘‘person’’ meansevery human being.’ In the case of MEVOPAL, SA v. Argentina, whichconcerned, inter alia, the right to a fair trial, the Inter-AmericanCommission referred to Article 1(2) and declared that:

For the purposes of this Convention, person means every human being. Underthis provision and in accordance with the reiterated doctrine of thisCommission and the jurisprudence of the Court, the Commission holds theterm ‘victim’ to be every person protected by the Convention as establishedgenerically in Article 1(1) in accordance with the regulations establishing therights and freedoms specifically recognized therein. Moreover, in accordancewith the second paragraph of the transcribed regulations, the person protectedby the Convention is ‘every human being’ – in Spanish ‘todo ser humano’, inFrench ‘tout etre humain’. Consequently, the Commission considers that theConvention grants its protection to physical or natural persons, excludingjuridical or ideal persons from its field of application, inasmuch as the latterare legal fiction and do not enjoy real existence in the material order. Thisinterpretation is confirmed on verifying the true significance attributed to thephrase ‘person is every human being’ with the text of the Preamble to theConvention which recognizes that the essential rights of man are ‘based onattributes of his human personality’ and reiterates the necessity of creatingconditions which permit every individual to ‘achieve the ideal of free humanbeings enjoying freedom from fear and want’.205

203 OAS Treaty Series No. 36. See, e.g., Articles 3, 4, 11, 12. 204 See section 5.3.205 Case of MEVOPAL, SA v. Argentina, Report No. 39/99, paras. 16–17, in Annual Report of

the Inter-American Commission on Human Rights 1998, April 16, 1999.


The Commission thus considered the petition ‘obviously out of order’ interms of the requirements established in Article 47(c) in conformitywith Article 1(2) of the American Convention, and declared it inadmis-sible. With this decision, the Commission confirmed an earlier practiceestablished in the cases of Banco del Peru and Tabacalera Boqueron.206

It can nevertheless be observed that there are several rights pro-nounced by the Convention which indirectly afford protection toNGOs. For instance, Article 16 recognises the right to freedom of asso-ciation, Article 15 the right to peaceful assembly and Article 13 the rightto freedom of expression. Most cases lodged with the Commissionconcern breaches of the most fundamental rights, such as the right tolife, the right to humane treatment and the right to personal liberty.However, a few cases have actualised the right to freedom of associationand the right to freedom of expression and have indirectly concernedorganisations.207 The Court’s case-law also provides a couple of exam-ples which concern these rights – for instance, Advisory Opinion No. 5on Compulsory Membership in an Association Prescribed by Law for the Practice

of Journalism, which raised the issue of the negative aspect of the right tofreedom of association.208 There are also examples of cases which con-cern peoples or cultural groups.209

Although the practice of the Commission in relation to legal personsas victims of Convention rights is entirely clear, it can be observed thatthe wording of the different rights provisions varies. Article 1(2) makesit clear that, for the purposes of the Convention, ‘person’ means everyhuman being. It is, however, only some of the rights provisions which

206 Banco del Peru v. Peru, Report No. 10/91, in OEA/Ser.L/V/II.79.rev.1, Annual Report ofthe Inter-American Commission on Human Rights, 1990–1991, February 22, 1991 andTabacalera Boqueron v. Paraguay, Report No. 47/97, in OEA/Ser.L/V/II.98, Annual Report ofthe Inter-American Commission on Human Rights, 1997, April 13, 1998. See also Case ofMetropolitan Nature Reserve, Report No. 88/03 in OEA/Ser.L/V/II.118, Annual Reportof the Inter-American Commission on Human Rights, 2003, December 29, 2003, para. 33.

207 See, e.g., Susana Higuchi v. Peru, Report No. 119/99 (in which the petitioner alleged thatthe state had refused to register her as a candidate for a political group before nationalelections), in OEA/Ser.L/V/II.106, Annual Report of the Inter-American Commission on HumanRights, 1999, April 13, 1999 and Clemente Ayala Torres et al. v. Mexico (in which thepetitioners were representatives of a political party), Report No. 48/99 in OEA/Ser.L/V/II.102, Annual Report of the Inter-American Commission on Human Rights, 1998, April 16, 1999.

208 Inter-American Court of Human Rights, Advisory Opinion OC-5/85, CompulsoryMembership in an Association Prescribed by Law for the Practice of Journalism, November 13,1985. See also Series C: Decisions and Judgments, No. 72, Baena Ricardo et al. v. Panama,3 February 2001 and No. 73, ‘The Last Temptation of Christ’ (Olmedo Bustos et al.) v. Chile,5 February 2001.

209 For instance No. 79,Mayagna (Sumo) Community of Awas Tingni v. Nicaragua, 31 August 2001.


employ this term (for example, Article 3 on the right to juridical person-ality, Article 4 on the right to life and Article 5 on the right to humanetreatment). Other provisions, including some of those most directlyconnected to the activities of NGOs (Article 13 on the right to freedomof expression, Article 16 on the right to freedom of assembly, Article 12on the right to freedom of religion), state that ‘Everyone has the rightto’. As pointed out above, this is the same expression as is used in theEuropean Convention, which does indeed recognise the rights of legalpersons. The right to peaceful assembly under Article 15 has been givena passive form: ‘The right of peaceful assembly, without arms, is recog-nized.’ In the case of MEVOPAL SA v. Argentina, described above, whichwas declared inadmissible ratione personae by the Commission, the peti-tioner alleged violations of the right to a fair trial (Article 8), the right toproperty (Article 21) and the right to equal protection (Article 24). Ofthese, the first and the last are guaranteed for ‘persons’, while thesecond is guaranteed for ‘everyone’.210 The Commission’s reference toand discussion of Article 1, however, does not seem to leave any roomfor a distinction between these two categories of rights.

The African Charter on Human and Peoples’ Rights

The title of the African Charter on Human and Peoples’ Rights gives animmediate impression of a different approach to rights than mostinternational or regional human rights instruments. The Charter expli-citly includes a collective notion of rights and articulates several grouprights, such as the right to existence and the right to self-determination(Article 20) and the right of all peoples to freely dispose of their wealthand natural resources (Article 21).211 Most rights are, however,bestowed on ‘every individual’. This is also the case with the right tofree association. Article 10 provides that:

1. Every individual shall have the right to free association provided thathe abides by the law.

2. Subject to the obligation of solidarity provided for in Article 29 no onemay be compelled to join an association.

210 The Declaration on the Rights and Duties of Man, by contrast, consistently includesexpressions such as ‘person’ and ‘individual’. It can also be observed that the Preambleto the European Convention for Human Rights does not, unlike the AmericanConvention, refer to the ‘human personality’.

211 Regarding peoples’ rights and the relationship between peoples’ rights and individualrights, see Rachel Murray, The African Commission on Human and Peoples’ Rights &International Law, Oxford: Hart Publishing, 2000, pp. 103–110.


The right to form and join trade unions is not expressly provided for.According to Umozurike, who is a member of the African Commission,the right is incorporated in the right to free association in Article 10.212

Literally, the right to free association is a purely individual right.Although several cases before the Commission have concerned the rightto free association, the Commission’s case-law does not provide muchinformation on whether the right may include corporate elements.213 Afew cases concerning the right to free association touch briefly on thequestion of rights pertaining to NGOs as such.

In the case of Civil Liberties Organization in Respect of the Nigerian Bar Association

v. Nigeria, a Nigerian NGO brought a communication alleging a violation of

the right to freedom of association.214 The communication was filed in protest

against a decree which established a new governing body of the Nigerian Bar

Association, namely the Body of Benchers. According to the decree the vast

majority of members of the new governing body should be nominated by the

government. One of the functions of the Body was to discipline legal practi-

tioners. The complaining NGO claimed a violation of Nigerian lawyers’ right to

freedom of association. The Commission’s opinion was somewhat contradic-

tory: ‘Freedom of association is enunciated as an individual right and is first and

foremost a duty for the State to abstain from interfering with the free formation

of association . . . In regulating the use of this right, the competent authorities

should not enact provisions which could limit the exercise of this freedom . . .

The Body of Benchers is dominated by representatives of the government and

has wide discretionary powers. This interference with the free association of the

Nigerian Bar Association is inconsistent with the preamble of the African

Charter in conjunction with UN basic Principles on the Independence of the

Judiciary and thereby constitutes a violation of Article 10 of the African

Charter.’215

212 U. Oji Umozurike, The African Charter on Human and Peoples’ Rights, Dordrecht: MartinusNijhoff, 1997, p. 36. See also Evelyn A. Ankumah, The African Commission on Human andPeoples’ Rights. Practices and Procedures, Dordrecht: Martinus Nijhoff, 1996, p. 137.

213 See, e.g., Communication No. 144/95, William A. Courson v. Equatorial Guinea, EleventhAnnual Activity Report, 1997–1998; No. 212/98, Amnesty International v. Zambia, TwelfthAnnual Activity Report, 1998–1999; Nos. 147/95 and 149/96, Sir Dawda K. Jawara v. TheGambia; and No. 205/97 Kazeem Aminu v. Nigeria, Thirteenth Annual Activity Report,1999–2000 and the communications described below.

214 Communication No. 101/93, Civil Liberties Organization in Respect of the Nigerian BarAssociation v. Nigeria, African Commission on Human and Peoples’ Rights, Eighth AnnualActivity Report, 1994–1995.

215 Communication No. 101/93, Civil Liberties Organization in Respect of the Nigerian BarAssociation v. Nigeria, paras. 14–16, African Commission onHuman and Peoples’ Rights,Eighth Annual Activity Report, 1994–1995.


While describing the right to free association as an individual right,the Commission stated that the interference with ‘the free associationof the Nigerian Bar Association’ is a violation of the Charter. It alsostated that the case concerned ‘a violation of Nigerian lawyers’ right tofreedom of association’, and thus an individual right. In other words, itcannot be concluded from this case alone that the right to free associa-tion under Article 10 protects NGOs as such.

The case of International Pen, Constitutional Rights Project, Interights onbehalf of Ken Saro-Wiwa, Jr. and Civil Liberties Organisation v. Nigeria con-cerned individual victims but nevertheless briefly touched on the inter-ests of an NGO.

The casewas filed on behalf of, inter alia, thewriter Ken Saro-Wiwa,whowas also

the president of the Movement for the Survival of the Ogoni People (MOSOP).

The communication alleged that Article 10(1) was violated because the victims

were tried and convicted by a special tribunal for their opinions, as expressed

through their work in MOSOP. In its judgement, the Tribunal held that by their

membership in MOSOP, the condemned persons were responsible for the

murders of four Ogoni leaders. The Commission stated that the tribunal had

demonstrated ‘a clear prejudice against the organisation MOSOP, which the

government has done nothing to defend or justify. Therefore the Commission

finds a violation of Article 10.1.’216

The case ofHuri-Laws v. Nigera, was submitted on behalf of the NGOCivilLiberties Organisation.

The applicant claimed that ‘since the formation of Civil Liberties Organisation

on 15th October 1987, it has experienced all forms of harassment and persecu-

tions from the Nigerian Government. These harassment and persecutions

have always been carried out in the form of arrests and detention of key

members and staff of the Organisation and by way of raids and searches without

warrants in the Organisation’s offices by its Security Agency, the State Security

Services (SSS).’217 The applicant claimed violations of, inter alia, Article 9 on

216 Communications Nos. 137/94, 139/94, 154/96, 161/97, International Pen, ConstitutionalRights Project, Interights, on behalf of Ken Saro-Wiwa, Jr. and Civil Liberties Organisation v.Nigeria, para. 108, Twelfth Annual Activity Report, 1998–1999.

217 Communication No. 225/98, Huri-Laws v. Nigeria, Fourteenth Annual Activity Report,2000–2001, annex 5, p. 58. See also Inger Osterdahl, Implementing Human Rights in Africa:The African Commission on Human and Peoples’ Rights and Individual Communications,Uppsala: Iustus Forlag, 2002, p. 98.


the right to freedom of expression and Article 10 on the right to free association.

The Commission found violations of both rights without clarifying who was the

victim of these violations.218

Another case which concerned the right to free association was Kenya

Human Rights Commission v. Kenya.

Academic staff at four public universities in Kenya decided to form an ‘umbrella’

trade union to represent their interests in negotiation with their respective

employers. An application for registration of the organisation was submitted

to the registrar of trade unions. The registrar refused to register the union on the

ground that ‘the union is used for unlawful purposes and as such, peace, wel-

fare, and good order in Kenya would otherwise be likely to suffer

prejudice’ . . . The trade union officials were later arrested and harassed. The

Commission declared the communication inadmissible because of failure to

exhaust local remedies.219

The Commission’s report on the case does not include any informationon the articles under which the communication was brought. Neitherdoes the Commission’s own opinion discuss which rights came intoquestion.

In sum, the Commission’s case-law does not demonstrate a consistentpractice as regards whether NGOs as such are protected under Article 10of the Charter. It can be observed that other rights closely connectedto the activities of NGOs, such as the right to freedom of informationand expression under Article 9 and the right to freedom of assemblyunder Article 11 are, like the right to free association, bestowed upon‘every individual’. The right to freedom of religion and profession underArticle 8 are impersonal, stating simply that the right is ‘guaranteed’.

The communication procedure may be of some interest for theexamination of the character of the rights under the Charter.According to Article 55, the Commission may receive communications‘other than those of state parties’ about violations of the rights enun-ciated in the Charter. Although it is not clarified in the Charter or in theCommission’s Amended Rules of Procedure who may submit suchcommunications, it is clear from the Commission’s practice thatindividuals, groups of individuals and NGOs are entitled to file

218 Ibid., pp. 64–65.219 Communication No. 135/94, Kenya Human Rights Commission v. Kenya, Ninth Annual

Activity Report, in 4 IHRR (1997), pp. 86–88.


complaints.220 There is no victim requirement for the author of a com-munication, and the Commission routinely registers communicationssubmitted by NGOs on behalf of the victim. The complainant is not evenrequired to be a citizen of a statemember of the OAS, and a complainingNGO does not have to be registered in one of themember states. Severalcommunications have been filed by international NGOs based outsideAfrica. It is in other words obvious thatmost complaints are not broughtby NGOs in their capacity as right-holders but in their role of spokes-persons of victims, with or without authorisation.

Because of the high number of communications submitted by NGOsto the African Commission, the Commission’s practice is likely toprovide an answer in the future to the question whether NGOs assuch are protected under the African Charter on Human and Peoples’Rights.

4.3 International obligations

Introduction

While the individual has taken a step on the international plane as arights-holder within the area of international human rights law, thereare also clear international legal obligations for the individual to refrainfrom certain conduct. The Nuremberg International Military Tribunalstated in 1946 that ‘international law imposes duties and liabilitiesupon individuals as well as upon States’.221 These duties were elabo-rated and clarified during the 1990s through the development of inter-national criminal law with the creation of International CriminalTribunals for Yugoslavia (ICTY) and Rwanda (ICTR) and the adoption ofthe Statute of the International Criminal Court.

220 See above and section 5.3. See also Umozurike, The African Charter on Human and Peoples’Rights, p. 75; Murray, The African Commission on Human and Peoples’ Rights & InternationalLaw, pp. 67–68; and Ankumah, The African Commission on Human and Peoples’ Rights, p. 24.Umozurike is a former member and Chairman of the Commission.

221 See Judgement of the Nuremberg International Military Tribunal, 1 October 1946, in41 AJIL (1947), p. 220. Another example of a treaty that imposes duties directly uponindividuals is the 1969 International Convention on Civil Liability for Oil PollutionDamage. According to the Convention’s Article III, the owner of a ship shall be liablefor any pollution damage caused by oil which has escaped from the ship. ‘Owner’ is tobe understood as the ‘person or persons registered as the owner of the ship’, and‘person’ means ‘any individual or partnership or any public or private body’ (Article I).Corporate bodies such as commercial companies can accordingly be held directlyliable under this provision of international treaty law.


As the role and influence of other non-state actors in international laware increasing, the discussion regarding their responsibilities outside thefields of armed conflict and international crime is intensifying. Withinthe area of human rights, there is interest among some states about thesubject of ‘human responsibilities’, of which other states are, however,highly critical. In 2000, the UN Commission on Human Rights, ‘Recallingthat human responsibilities were an integral part of the negotiatingprocess leading to the Universal Declaration for Human Rights and arean important part of the Universal Declaration, but have since beenignored’, requested the Sub-Commission to undertake a study on thetopic.222 The issue is controversial, and the resolution, which was intro-duced by Pakistan, was adopted by only 22 votes to 21, with 10 absten-tions.223 The study requested was prepared by the Special RapporteurMiguel Alfonso Martınez and a pre-draft declaration on human socialresponsibilities is presented in his report.224 In Article 1 of the pre-draftdeclaration, it is made clear that the terms ‘responsibilities’ and ‘duties’are used interchangeably ‘to indicate actions and attitudes that arejudged on the extralegal social plane and not as mandatory obligationsunder the law’. Nevertheless, the declaration enumerates a considerablenumber of duties in different areas of societal and human life, and statesthat: ‘The rights of the individual and his or her social responsibilities areindissolubly linked. They mutually reinforce each other and for thatreason deserve express recognition of their equal value and importance

222 E/CN.4/RES/2000/63,Human Rights and Human Responsibilities, 27 April 2000. According tothe Universal Declaration of Human Rights, Article 29(1), ‘everyone has duties to thecommunity’. Another restriction is made in Article 30, according to which nothing inthe Declaration ‘may be interpreted as implying for any State, group or person anyright to engage in any activity or to perform any act aimed at the destruction of anyof the rights and freedoms set forth herein’. The duties of the individual are alsomentioned in the Preambles of the ICCPR and the ICESCR (para. 5 states that ‘Realisingthat the individual, having duties to other individuals and to the Community to whichhe belongs, is under a responsibility to strive for the promotion and observance of therights recognised in the present Covenant’) and in the African Charter on Human andPeoples’ Rights, chapter 2. According to Clapham, individuals are obliged to respectthe human rights contained in the ICCPR, see Andrew Clapham, Human Rights in thePrivate Sphere, Oxford: Clarendon Press, 1993, p. 97. See also Torkel Opsahl and VojinDimitrijevic, ‘Articles 29 and 30’, in Gudmundur Alfredsson and Asbjørn Eide (eds.),The Universal Declaration of Human Rights: A Common Standard of Achievement, The Hague:Martinus Nijhoff, 1999, pp. 637–642.

223 E/CN.4/2000/SR.65, 4 May 2000, Commission on Human Rights, Fifty-Sixth Session, SummaryRecord of the 65th Meeting, paras. 80 and 99.

224 E/CN.4/2003/105, Promotion and Protection of Human Rights: Human Rights and HumanResponsibilities, 17 March 2003, annex I.


to life in society’ (Article 5). At its 60th session in 2004, the Commissionon Human Rights decided, by a slim majority, to accept a draft decisionpresented by China and thereby requested the Office of the HighCommissioner for Human Rights to circulate to member states andrelevant organisations the pre-draft declaration on human social respon-sibilities, requesting their views on it, to submit to the Commission at itsnext session a compilation of the essential aspects of the replies received,and to continue the consideration of the issue at its 61st session.225 At thesubsequent session of ECOSOC, the Netherlands presented a draft deci-sion on behalf of a group of states attempting to revoke the decision ofthe Commission on Human Rights. In this draft, the group of statesexpressed concern that the content of the pre-draft declaration onhuman social responsibilities ran counter to fundamental human rightsprinciples by seeking to make the enjoyment of human rights condi-tional, and proposed that the Office of the High Commissioner should beasked not to proceed with the issue.226 However, the draft decision wasrejected, again by a slim majority, by ECOSOC, which thus accepted thedecision of the Commission on Human Rights to proceed with the pro-cessing of the pre-draft declaration on human social responsibilities.227

The international responsibilities of TNCs, as well as the interna-tional legal accountability of armed non-state actors, have been othermajor issues.228 Agreements on standards of conduct have beenconcluded between non-state parties to conflicts and states, and betweenIGOs and non-state armed groups.229 The threat from terroristgroups calls fundamental rules of international law, such as theright to self-defence, into question, and the sanctions issued by the UNSecurity Council on Al-Qaida and other non-state actors bridge tradi-tional divides, such as public–private and international–national.230

225 E/2004/23, Commission on Human Rights: Report on the 60th Session, Part I, p. 346, Decision2004/117, Human Rights and Human Responsibilities. The draft decision was adoptedwith 26 votes for, 25 against and 2 abstentions.

226 E/2004/L.21, Commission on Human Rights Decision 2004/117 on Human Rights and HumanResponsibilities, 14 July 2004.

227 A/59/3, Report of the Economic and Social Council for 2004 (preliminary version), 6 August2004, pp. 99–100. The draft decision was rejected by a vote of 25 to 24 with 5 abstentions.

228 See, e.g., E/CN.4/2004/90, Promotion and Protection of Human Rights: Fundamental Standardsof Humanity. Report of the Secretary-General, 25 February 2004. On standards of conductfor transnational corporations, see section 4.3.

229 For examples, see E/CN.4/2001/91, paras. 40–45.230 See, for instance, S/RES/1373, 29 September 2001, S/RES/1526, 30 January 2004 and

S/RES/1530, 11 March 2004.


Although the concept of ‘NGO’ is understood in this study as exclusiveof violent groups, these developments demonstrate that assumptionscannot be made a priori when issues relating to the behaviour of non-state actors are discussed.231

The international legal obligations of NGOs are still a rather undevel-oped area in international law. The few international instruments thatformulate some sort of responsibilities for NGOs will be examinedbelow.232 There has also been some progress in the area of self-regulation. NGOs that enter into formal relations with IGOs voluntarilyundertake certain responsibilities. NGOs also seek to enhance theiraccountability by elaborating and adhering to codes of conduct, as willbe discussed below. Obligations under international humanitarianlaw will be examined in the section which deals specifically with thisarea of law.233

Limitations of organisation rights

The above survey of human rights instruments treaties has demonstratedthat some international and regional human rights, notably the right tofreedom of association, protect not only individuals, but also NGOs.However, international law also requires that states restrict the rightto freedom of association. Article 4 of the International Convention onthe Elimination of all Forms of Racial Discrimination (1965) obligesstate parties to:

condemn all propaganda and all organizations which are based on ideas ortheories of superiority of one race or group of persons of one colour or ethnicorigin, or which attempt to justify or promote racial hatred and discriminationin any form.

231 See section 1.3.232 One document which will not be examined in this section is, however, the Council of

Europe Fundamental Principles on the Status of Non-Governmental Organisations inEurope. The Principles can be regarded as guidelines to states for the formulation ofappropriate national legislation on NGOs. The rather detailed Principles, however,also contain provisions which can be seen as recommendations to NGOs. For instance,it is stated that NGOs should employ lawful means in pursuing their objectives, thatthey should have statutes, that the bodies for management and decision-making ofNGOs should be in accordance with their statutes and the law and that NGOs shouldobserve all applicable employment standards and insurance obligations in the treatmentof their staff. Fundamental Principles on the Status of Non-Governmental Organisations in Europeand Explanatory Memorandum, Council of Europe, May 2003. See also section 4.2.



State parties undertake to adopt immediate and positive measuresdesigned to eradicate all incitement to, or acts of, suchdiscrimination and:

shall declare illegal and prohibit organizations, and also organized and all otherpropaganda activities, which promote and incite racial discrimination, andshall recognize participation in such organizations or activities as an offencepunishable by law.234

The Committee on the Elimination of all Forms of Racial Discriminationhas explained its views on this provision in two of its general recom-mendations. In General Recommendation No. 7, issued in 1985, theCommittee recommended state parties whose legislation did not satisfythe provisions of Article 4 to ‘take the necessary steps with a viewto satisfying the mandatory requirements of that article’.235 GeneralRecommendation No. 15 is more elaborate. In this recommendation,the Committee explained that it held the opinion that the prohibition ofdissemination of ideas based upon racial superiority or hatred wascompatible with the right to freedom of opinion and expression. TheCommittee noted that some states had maintained that it was inap-propriate in their legal orders to declare an organisation illegal beforeits members had promoted or incited racial discrimination, but empha-sised that ‘These organizations, as well as other organized and otherpropaganda activities, have to be declared illegal and prohibited’.236

Article 4 of CERD thus imposes a legal obligation which, although it isdirected to contracting states, is of direct concern to NGOs as it inpractice prohibits certain actions being undertaken by them. CERDArticle 4 also circumscribes the right to freedom of association as con-ferred on NGOs by other treaties. In the survey of organisation rightsabove, it was found that, outside the area of labour law, the conventionthatmost clearly confers rights onNGOs as organisations is the EuropeanConvention on Human Rights and Fundamental Freedoms.237 This wasdue to the standing of NGOs as victims before the European Courtof Human Rights provided by Article 34 of the Convention in the case

234 International Convention on the Elimination of All Forms of Racial Discrimination(1965), Article 4(b).

235 CERD General Recommendation No. 7, Legislation to Eradicate Racial Discrimination(Art. 4), 25 August 1985, para. 1, in A/40/18, Report of the Committee on the Eliminationof Racial Discrimination, 1985.

236 CERD General Recommendation No. 15, Organized Violence based on Ethnic Origin (Art. 4),19 March 1993, para. 6, in A/48/18, Report of the Committee on the Elimination of RacialDiscrimination, 1993.



of a violation of an organisation right. Most state parties to the EuropeanConvention on Human Rights are also parties to CERD. Thus, withinthese states, the rights to freedom of association, assembly and expres-sion as conferred on NGOs by the European Convention are qualifiedby Article 4 of CERD, albeit the European Convention also entitles statesto make restrictions of rights on other grounds.238

The ILO Conventions

A few ILO Conventions have been discussed above as examples oftreaties which bestow rights on NGOs as such. At least one of theFundamental ILO Conventions also imposes an international obligationon organisations of workers and employers. Article 8(1) of the Freedomof Association and Protection of the Right to Organise Convention(No. 87, 1948), provides that workers’ and employers’ organisationsshall, like other persons or organised collectivities, respect the law ofthe land in exercising the rights provided for in the Convention.

The UN Declaration on Human Rights Defenders

The UN Declaration on Human Rights Defenders seems to be the onlyinternational instrument which formulates responsibilities for NGOs ingeneral.239 Article 18 states that:

1. Everyone has duties towards and within the community, in whichalone the free and full development of his or her personality is possible.

2. Individuals, groups, institutions and non-governmental organizationshave an important role to play and a responsibility in safeguardingdemocracy, promoting human rights and fundamental freedoms andcontributing to the promotion and advancement of democraticsocieties, institutions and processes.

3. Individuals, groups, institutions and non-governmental organizationsalso have an important role and a responsibility in contributing, asappropriate, to the promotion of the right of everyone to a social andinternational order in which the rights and freedoms set forth in theUniversal Declaration of Human Rights and other human rightsinstruments can be fully realized.

The wording of these provisions is vague. The expressions ‘importantrole’ and ‘responsibility’ are used instead of more legal terms, such as

238 See Articles 10(2), 11(2), 16, 17.239 A/RES/53/144, Declaration on the Right and Responsibility of Individuals, Groups and Organs of

Society to Promote and Protect Universally Recognized Human Rights and Fundamental Freedoms,8 March 1999, annex.


‘duties’ or ‘obligations’. There were different views on the notion ofresponsibilities of human rights defenders during the preparatorywork on the Declaration. Some members of the working group of theHuman Rights Commission argued that the text unnecessarily incorpo-rated references to duties of human rights defenders: while individualsand groups hadmoral responsibilities in promoting human rights it wasstates that had the obligation.240 The representatives of, inter alia,Turkey, Cuba and Malaysia were more in favour of the formulation ofduties and responsibilities for human rights defenders than the repre-sentatives of, among others, Sweden, France, the Netherlands, as well asa group of NGOs.241 Turkey stated that it could not give its consent to atext lacking a consolidated article enumerating the responsibilities ofhuman rights defenders, and the representative of Cuba expressed asimilar view. The Swedish representative argued that if a reference onduties and responsibilities had to be included in the declaration, itshould be an exact replica of Article 29(1) of the Universal Declarationof Human Rights.242 The representative of Malaysia suggested that bylaying down loose guidelines on the responsibilities of human rightsdefenders, their credibility as a whole would hopefully be enhanced.243

The final result was, as demonstrated above, the inclusion in Article18 of a rather vague reference to the duties of ‘Everyone’ and the‘important role . . . and . . . responsibility’ of individuals, groups, institu-tions and NGOs. It should be noted that it is stressed in the Preamble ofthe Declaration that ‘the prime responsibility and duty to promote andprotect human rights and fundamental freedoms lie with the State’. TheDeclaration indicates that while states are under a primary legal obliga-tion to comply with international human rights law, it cannotbe excluded that human rights NGOs will be under a supplementaryinternational obligation to do so in the future.

The obligations of NGOs in their co-operation with IGOs

Formal IGO–NGO co-operation

The different regional and international instruments that regulatethe arrangements for co-operation between NGOs and IGOs includeprovisions on how NGOs should behave in relation to the IGO and

240 E/CN.4/1998/98, 29 March 1998, para. 21.241 E/CN.4/1997/92, Drafting of a Declaration on the Right and Responsibility of Individuals,

25 March 1997, paras. 53–63 and E/CN.4/1998/98, 29 March 1998, para. 21.242 E/CN.4/1997/92, paras. 55 and 57. 243 E/CN.4/1998/98, para. 41.


otherwise once their application for a formalised relationship has beenaccepted. NGOs in formal relationship with an IGO thus voluntarilytake on an obligation to refrain from certain conduct in order notto be excluded from further co-operation. The general aspects ofconsultative or similar arrangements for NGOs with different IGOswill be more thoroughly described in chapter 7.244 In the presentcontext, it is sufficient to examine what kind of conduct NGOs inconsultative status are under an obligation to refrain from accordingto the different resolutions regulating such relations.

The most important and extensive provisions regarding consultativestatus for NGOs on the international plane are those contained inECOSOC resolution 1996/31 regarding consultative relationshipbetween the United Nations and NGOs. These arrangements have thepurpose of enabling the ECOSOC and its subsidiary bodies to secureexpert information or advice from NGOs with special competence andto enable NGOs that represent important elements of public opinion toexpress their views.245 The resolution contains a particular chapter onsuspension and withdrawal of consultative status, specifying whichtypes of conduct NGOs in consultative status must refrain from if theywish to keep their status with ECOSOC. There is a general obligation fororganisations which have been granted consultative status to ‘conformat all times to the principles governing the establishment and nature oftheir consultative relations with the Council’.246

There are three main grounds for suspension or withdrawal of con-sultative status. First, consultative status shall be suspended for up tothree years or withdrawn if an NGO clearly abuses its status by engagingin a pattern of acts contrary to the purposes and principles of the UNCharter, ‘including unsubstantiated or politically motivated actsagainst Member States of the United Nations incompatible with thosepurposes and principles’.247 Secondly, suspension or withdrawal shalltake place if there is substantiated evidence of influence from proceedsresulting from internationally recognised criminal activities, such asillicit drugs or arms trade or money laundering. Finally, there is apositive obligation on NGOs in consultative status to make a positiveor effective contribution to the work of the United Nations. If the NGO

244 See section 7.2 and E/RES/1996/31, Consultative Relationship between the United Nationsand Non-Governmental Organizations, 25 July 1996.

245 E/RES/1996/31, para. 20. 246 Ibid., para. 55. 247 Ibid., para. 57(a).


has not complied with this provision within the preceding three yearsof its examination, its status shall be suspended or withdrawn.248

As will be described later in this book, the regular monitoring ofconsultative relations with NGOs is performed by the CouncilCommittee of NGOs.249 Its decisions thus demonstrate how the obliga-tions formulated for NGOs in the resolution on consultative arrange-ments are interpreted in practice. Alleged acts which have beencriticised by Committee members for being in breach of the provisionsare, inter alia, the supporting and financing of subversive activities, thedistribution of ‘aggressive publications’ and having links with separa-tist organisations or accrediting members of such organisations.250 Itshould be noted, however, that there are often very different viewsamong Committee members as well as among NGO representatives asto what has really happened.251 Such discrepancies may cause insecur-ity as to what have been the real motives for some decisions, which inturn might blur the contours of the obligations bestowed on NGOs inconsultative status with the Council. Moreover, the alleged acts thatCommittee members refer to as a basis for suspension or withdrawal ofconsultative status arewide-ranging and can sometimes not be regardedas clearly falling within a reasonable interpretation of the ECOSOCresolution 1996/31 on consultative arrangements. Actions which havebeenmentioned during these discussions, apart from those which werementioned above, include the obtaining of interpretation service‘through unjust means’ (i.e. to make a request at a late stage before ameeting with the intention to ‘cause chaos’), and to ‘rub shoulders withheretical cults’.252 Criticism has also been raised against acts which fallwithin a ‘grey zone’ in relation to the provisions of the resolution, suchas being ‘not a non-governmental organization but a political organiza-tion’, to divide the ‘membership of the Council Committee on NGOs

248 Ibid., para. 57(b–c). As to the UN specialised agencies, the obligations of NGOs thatmaintain formal relationswith the UnitedNations Educational, Scientific and CulturalOrganization (UNESCO) are rather elaborate and mainly focused on the contributionof NGOs to UNESCO’s work. 28 C/43, Directives Concerning UNESCO’s Relations withNon-Governmental Organizations, 28 August 1995, para. 7. The FAO upholds similarrequirements, see FAO Policy Concerning Relations with International Non-GovernmentalOrganizations, Basic Texts of the Food and Agriculture Organization of the United Nations,1998 edn., II, para. 22.

249 Section 7.2.250 E/2000/88, Report of the Committee on Non-Governmental Organizations, 13 July 2000,

paras. 70 ff.251 Ibid. 252 Ibid., para. 99.


into ‘‘democratic’’ and ‘‘undemocratic’’ countries’, or to promote ‘thelegalization of drugs by launching civil disobedience campaigns, distri-buting drugs and denouncing anti-drug legislation’.253 In sum, it is notpossible to say exactly what actions NGOs in consultative status withthe ECOSOC are obliged to refrain from.

The obligations on NGOs in consultative status with regional organ-isations are of a similar nature. According to the resolution regulatingparticipatory status for international NGOs with the Council of Europe,NGOs which have obtained such status shall undertake, in short, to:

* keep themselves regularly informed of CoE activities and develop-ments in standards,

* furnish the different bodies of the CoEwith information, documents oropinions,

* work to promote the respect of the CoE’s standards, conventions andlegal instruments in the member states, and assist in the implementa-tion of these standards, and this in close contact with local, regionaland national NGOs,

* givemaximumpublicity to the initiatives and achievements of the CoEin their own field(s) of competence,

* disseminate information on CoE standards, instruments and activitiesto their members, and

* submit every four years a report to the Secretary-General, containingcertain specified information.254

Participatory status may be withdrawn, inter alia, if an NGO no longermeets the conditions for participatory status (for example, by failing tobe particularly representative in its field of competence), if it has failedto comply with its obligations under the rules described above, or if ithas ‘taken any action which is not in keeping with its status as anINGO’.255 The decision to remove an organisation from the list istaken by the Secretary-General, and submitted for tacit approval tothe Committee of Ministers, the Parliamentary Assembly and theCongress of Local and Regional Authorities. The decisions of the

253 Ibid., paras. 105, 99, 101.254 Committee of Ministers, Resolution (2003)8, Participatory Status for International

Non-Governmental Organisations with the Council of Europe, adopted on 19 November2003, appendix, para. 9. Resolution (2003)9 on Status of Partnership for NationalNon-Governmental Organisations with the Council of Europe (19 November 2003) lays downsimilar responsibilities, however without expressly describing these as obligations orundertakings, see appendix, para. 4.

255 Committee of Ministers, Resolution (2003)8, Participatory Status for InternationalNon-Governmental Organisations with the Council of Europe, appendix, para. 16.


Secretary-General under the former resolution on consultative status,which had a similar wording as the present resolution on participatorystatus, demonstrate that themost commongrounds for removing anNGOfrom the list of those NGOs enjoying consultative status is that they haveceased their activities or have failed to contribute to thework programmeof the Council of Europe or to make known its activities to the Europeanpublic.256 During the period October 1997–January 2001, there did notseem to be any cases where the consultative status of an NGO was with-drawn on the ground that it had ‘taken action which is not in keepingwith its status as an international non-governmental organization’.

The formal relations of the OAS with NGOs are labelled ‘participationof civil society organizations in OAS activities’.257 By entering into suchrelations, NGOs and other civil society organisations undertake certain,rather limited, responsibilities, such as to answer inquiries from theorgans, agencies and entities of theOAS and provide advisory services tothem upon request, to disseminate information on OAS activities to itsmembers and to present a yearly report on their participation in OASactivities to the OAS General Secretariat.258 Other obligations areimplied in the provision regarding suspension or cancellation of regis-tration of civil society organisations. The Committee on Inter-AmericanSummits Management and Civil Society Participation in OAS Activitiesmay recommend to the Permanent Council that it suspend or cancel theregistration if an organisation has:

* acted in a manner that is inconsistent with the essential aims andprinciples of the OAS,

* failed to make a positive or effective contribution to the work of theOAS,

* failed to submit reports for two consecutive years; or* furnished manifestly false or inaccurate information.259

In other words, NGOs and other civil society organisations that registerfor participation in OAS activities undertake to refrain from suchconduct. The documentation of the meetings of the Committee on

256 Communications of the Secretary-General, Docs. No. 7950, 15 October 1997,paras. 7–8; No. 8027, 19 February 1998, para. 6; No. 8497, 6 September 1999, para. 4;No. 8550, 29 September 1999, para. 7; No. 8873, 16 October 2000, para. 8; No. 8933,22 January 2001. See also Doc. SG/Inf(2003)32, 29 September 2003, para. 7.

257 The arrangements are regulated by CP/RES. 759 (1217/99), Guidelines for the Participationof Civil Society Organizations in OAS Activities, 15 December 1999. For more detailedinformation on these arrangements, see section 7.8.

258 CP/RES. 759 (1217/99), 15 December 1999, para. 11. 259 Ibid., para. 15.


Inter-American Summits Management and Civil Society Participationdoes not include any recommendation for withdrawal or suspension ofthe registration of a civil society organisation during the period 2002–4.This may be due to the fact that the arrangements for consultation withcivil society organisations were adopted fairly recently.260

NGOs enjoying observer status with the African Commission onHuman and Peoples’ Rights undertake to ‘establish close relations ofco-operation with the African Commission and to engage in regularconsultations with it on all matters of common interest’ and to presentactivity reports to the Commission every two years.261

Operational IGO–NGO co-operation

Just as with the formalised co-operation between IGOs andNGOs, opera-tional co-operation may result in obligations on the part of NGOs. IGOsoften conclude memoranda of understanding (MOU), framework agree-ments or contracts with NGOs, according to which NGOs undertakecontractual obligations. Such agreements often lack provisions onapplicable law, and sometimes even refer only to general principles oflaw. Disputes are often referred to arbitration. Some agreements onIGO–NGO co-operation provide that the NGO shall apply a specificcode of conduct, which seems to increase the normative status of theotherwise voluntary codes (see below). The different kinds of agree-ments concluded between IGOs and NGOs will be examined in a laterchapter.262

Codes of conduct

Codes of conduct are increasingly being used for voluntary regulation ofdifferent sectors of society. The OECD Guidelines for MultinationalEnterprises, first adopted in 1976, for instance, are recommendationson responsible business conduct which governments make to MNEsoperating in or from the adhering countries.263 In contrast to the vari-ous codes of conduct that businesses develop for self-regulation, theOECD Guidelines are thus endorsed multilaterally by states.

260 By the end of 1999. See section 7.6.261 Resolution on the Criteria for Granting and Enjoying Observer Status to Non-Governmental

Organisations Working in the Field of Human Rights with the African Commission on Humanand Peoples’ Rights, adopted by the ACHPR at its 25th session, 26 April–5 May 1999,chapter III. See section 7.7.

262 Chapter 9. 263 The OECD Guidelines for Multinational Enterprises, Revision 2000, p. 5.


The ILO Tripartite Declaration of Principles concerning MultinationalEnterprises and Social Policy was adopted in 1977, and has beenamended several times since.264 The effect given by governments andemployers to the principles laid down in the Declaration is followedthrough quadrennial questionnaires, sent out by the ILO, throughwhich member states and national employers’ and workers’ organisa-tions provide information on the implementation of the Declaration.The responses received are examined by the ILO Governing Body. Thereis also a procedure for the examination of disputes concerning theDeclaration, under which governments and organisations of workersand employers may request an interpretation from the ILO and theOfficers of the Committee on Multinational Enterprises.265

The issue of codes of conduct is also being discussedwithin the UnitedNations. In 1999, the Sub-Commission on the Promotion and Protectionof Human Rights decided to establish a sessional working group toexamine the working methods and activities of TNCs.266 In 2003, theSub-Commission approved draft norms on the responsibilities of TNCsand other business enterprises with regard to human rights and trans-mitted them to the Commission on Human Rights. In the first para-graph of the draft norms, it is stated that

States have the primary responsibility to promote, secure the fulfillment of,respect, ensure respect of and protect human rights recognized in internationalas well as national law, including ensuring that transnational corporations andother business enterprises respect human rights. Within their respectivespheres of activity and influence, transnational corporations and other businessenterprises have the obligation to promote, secure the fulfillment of, respect,ensure respect of and protect human rights recognized in international as wellas national law, including the rights and interests of indigenous peoples andother vulnerable groups.267

264 Document OB vol. LXI, 1978, Series A, No. 1, Tripartite Declaration of Principles concerningMultinational Enterprises and Social Policy, adopted by the Governing Body of theInternational Labour Office at its 204th Session, Geneva, November 1977.

265 Procedure for the Examination of Disputes concerning the Application of the Tripartite Declarationof Principles Concerning Multinational Enterprises and Social Policy by Means of Interpretation ofits Provisions, adopted by the Governing Body of the ILO at its 232nd Session, Geneva,March 1986.

266 E/CN.4/SUB.2/DEC/1999/101, Establishment of a Sessional Working Group on the WorkingMethods and Activities of Transnational Corporations, 3 August 1999.

267 E/CN.4/Sub.2/2003/12/Rev.2, Economic, Social and Cultural Rights. Norms on theresponsibilities of TNCs and other business enterprises with regard to human rights,26 August 2003. See also the Commentary contained in E/CN.4/Sub.2/2003/38/Rev.2.


The draft norms enumerate various human rights which should berespected and promoted by business enterprises, including the rightto freedom of association and to collective bargaining. In line with therecommendation of the Commission on Human Rights, ECOSOCrequested the Office of the UN High Commissioner on Human Rightsto compile a report on the issue, and affirmed, inter alia, that the docu-ment had not been requested by the Commission and, as a draft propo-sal, had no legal standing.268 In other words, the status of the draftnorms is uncertain, although they indicate a growing acceptance ofthe theory that business has international legal obligations in the fieldof human rights.

In order to enhance their accountability and legitimacy, NGOs areincreasingly creating joint standards for self-regulation. Particularly inthe area of humanitarian response, it has been regarded as important tocreate greater NGO accountability. The Code of Conduct for the InternationalRed Cross and Red CrescentMovement and NGOs in Disaster Reliefwas preparedjointly in the mid-1990s by the International Federation of Red Crossand Red Crescent Societies and the ICRC with the co-operation ofCaritas Internationalis, Catholic Relief Services, International Save theChildren Alliance, the Lutheran World Federation, Oxfam and TheWorld Council of Churches.269 The Code of Conduct was presented toand welcomed by the 26th International Conference of the Red Crossand Red Crescent in 1995.270 By August 2004, it had 307 NGOsignatories.271

The Code of Conduct for the International Red Cross and Red CrescentMovement and NGOs in Disaster Relief is a voluntary code which ‘seeksto maintain the high standards of independence, effectiveness andimpact to which disaster response NGOs and the International Red

268 E/2004/23, Commission on Human Rights: Report on the Sixtieth Session, Part I, Decisions2004/116, pp. 345–346.

269 The Code of Conduct for the International Red Cross and Red Crescent Movement and NGOs inDisaster Relief, International Review of the Red Cross No. 310, pp. 55–130, annex VI,footnote 1.

270 26th International Conference of the Red Cross and Red Crescent, Geneva, 3–7December 1995, Resolution No. 4, Principles and Action in International HumanitarianAssistance and Protection, para. E, in International Review of the Red Cross No. 310, 1996,pp. 55–130.

271 Code of Conduct for the International Red Cross and Red Crescent Movement and NGOs in DisasterRelief, List of Signatories, 20 August 2004 (public record kept by the InternationalFederation of Red Cross and Red Crescent Societies).


Cross and Red Crescent Movement aspires’.272 The provisions of thecode state, inter alia, that

* Aid is given regardless of the race, creed or nationality of the recipientsand without adverse distinction of any kind. Aid is calculated on thebasis of need alone.

* Aid will not be used to further a particular political or religiousstandpoint.

* We shall endeavour not to act as instruments of government foreignpolicy.

* We shall hold ourselves accountable to both those we seek to assist andthose from whom we accept resources.273

The normative language varies fromone provision to another; while thefirst and most basic provisions are expressed in the form of straightstatements (‘Aid is . . . ’), ‘shall’ or ‘must’ are used in other provisions.Although it is clear that the Code of Conduct is a voluntary means ofself-regulation, it does at the same time have a certain degree of norma-tive force among the over 300 NGOs that have adhered to it. Thisnormativity is strengthened by the fact that several donors have madefunding conditional on agencies adhering to the Code.274 Moreover, aswas stated above, agreements on IGO–NGO co-operation sometimesrequire that the NGO applies the Code.275 On the other hand, the Codedoes not establish any procedures for implementation or monitoring. Apossible future development could be the creation of such a procedureor of links between codes of conduct and consultative status or othertypes of formal relationship between NGOs and IGOs.

4.4 International humanitarian law and non-state actors

Introduction

Armed conflicts often create situations where organised non-stateactors are involved, either as parties to the conflict or as independent

272 ICRC Annual Report 1999, p. 39 and The Code of Conduct for the International Red Cross andRed Crescent Movement and NGOs in Disaster Relief, Purpose, in the International Reviewof the Red Cross No. 310, 1996, pp. 55–130.

273 Code of Conduct for the International Red Cross and Red Crescent Movement and NGOs in DisasterRelief, paras. 2, 3, 4, 9.

274 Toby Porter, ‘The Partiality of Humanitarian Assistance – Kosovo in ComparativePerspective’, The Journal of Humanitarian Assistance, June 2000, posted online athttp://www.jha.ac/articles/a057.htm, accessed on 30 November 2000, endnote (ii).



actors offering humanitarian assistance. The definition of ‘NGO’ used inthe present study excludes all armed groups and organisations.276

Nonetheless, it is interesting to observe that humanitarian law createsinternational rights and duties for non-state groups which are parties toa conflict. In the nineteenth century there was already a way for statesto create an international legal setting for a conflict not of an interna-tional character. By recognising insurgents fighting against it as belli-gerents, the insurgents could be subjects of rights and duties under thelaws of war.277 When the Geneva Conventions were adopted in 1949,basic humanitarian rules became applicable to non-state parties toarmed conflicts not of an international character. Common Article 3of the Conventions provides that ‘each Party to the conflict shall bebound to apply, as a minimum the following principles’, meaning thatobligations are placed on states as well as non-state bodies parties to theconflict. It is automatically applicable to non-international armedconflicts, without any condition of reciprocity.278 Non-state parties toarmed conflict are also under a customary legal obligation to apply basichumanitarian standards.279

276 See section 1.3.277 Hans Aufricht, ‘Personality in International Law’, XXXVII The American Political Science

Review (1943), p. 221; Hersch Lauterpacht, ‘The Subjects of the Law of Nations’,63 The Law Quarterly Review (1947), p. 444; Yves Sandoz et al. (eds.), Commentary on theAdditional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949, InternationalCommittee of the Red Cross, Geneva: Martinus Nijhoff, 1987, pp. 1320–1321(hereafter, ‘Commentary on the Additional Protocols’); Edward Kwakwa, The InternationalLaw of Armed Conflict: Personal and Material Fields of Application, The Hague: KluwerAcademic Publishers, 1992, p. 48.

278 Jean S. Pictet (ed.), The Geneva Conventions of 12 August 1949: Commentary, Geneva:International Committee of the Red Cross, I Geneva Convention, 1952, p. 48. Thecharacter of the non-state party is not further specified in the Convention, but duringthe Diplomatic Conference in Geneva in 1949 some criteria were discussed. Amongthose were (1) that the party in revolt against the de jure government possessesan organised military force, an authority responsible for its acts, acting within adeterminate territory and having the means of respecting and ensuring respectfor the Convention, (2) that the de jure government has recognised the insurgents asbelligerents, or that it has claimed itself the rights of a belligerent, or that it hasaccorded the insurgents recognition as belligerents for the purposes of theConvention, (3) that the insurgents have an organisation purporting to have thecharacteristics of a state and a civil authority exercising de facto authority over personswithin a determinate territory, (4) that the armed forces act under the direction of theorganised civil authority and are prepared to observe the ordinary laws of war and (5)that the insurgent civil authority agrees to be bound by the provisions of theConventions, Pictet (ed.), The Geneva Conventions, pp. 49–50.

279 Lisbeth Zegveld, The Accountability of Armed Opposition Groups in International Law,Cambridge University Press, 2000, p. 10.


With the Additional Protocol I of 1977, more developed humanitarianrules were formulated for ‘armed conflicts inwhich peoples are fightingagainst colonial domination and alien occupation and against racistregimes in the exercise of their right of self-determination’.280

Liberation movements were now given the possibility to submit tointernational humanitarian law, beyond the requirements ofCommon Article 3 and customary international law, by declaring uni-laterally to undertake to apply the Conventions and the Protocol.281 Theconsequence of such a declaration is that the authority which makesthis declaration assumes the same rights and obligations as a state partyto the Conventions and the Protocol.282 The requirements as regards theapplication of the Protocol to the non-state party are an authorityrepresenting the people engaged in the struggle and an organised struc-ture of its armed forces, including a responsible command, in accor-dance with the requirements of Article 43.283

Protocol II relating to Protection of Victims of Non-International ArmedConflicts extended the rules of humanitarian law even further.284 WhileProtocol II, like Common Article 3, is automatically applicable to non-international conflicts, its protection goes beyond theminimumstandardsof the latter. The intensity of the conflict, however, has to be greater totrigger applicability than what is required under Common Article 3.285

The Protocol applies to armed conflicts which are not covered by Protocol I‘andwhich take place in the territory of a High Contracting Party betweenits armed forces and dissident armed forces or other organized groupswhich, under responsible command, exercise such control over a part of

280 Protocol Additional to the Geneva Conventions of 12 August 1949, and relatingto the Protection of Victims of International Armed Conflicts (Protocol I), 8 June 1977,Article 1(4).

281 Protocol I, Article 96(3), Commentary on the Additional Protocols, pp. 1089–1090.282 Commentary on the Additional Protocols, p. 1090.283 Ibid., p. 55. Article 43(1) reads: ‘The armed forces of a Party to a conflict consist of all

organized armed forces, groups and units which are under a command responsible tothat Party for the conduct of its subordinates, even if that Party is represented by agovernment or an authority not recognized by an adverse Party. Such armed forcesshall be subject to an internal disciplinary system which, inter alia, shall enforcecompliance with the rules of international law applicable in armed conflict.’ As to thedefinition of a national liberation movement, see Kwakwa, The International Law ofArmed Conflict, pp. 50–52. As to the general scope ratione personae of the Conventions andthe Additional Protocols, see pp. 85–127.

284 Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to theProtection of Victims of Non-International Armed Conflicts (Protocol II), 8 June 1977.

285 Commentary on the Additional Protocols, p. 1350.


its territory as to enable them to carry out sustained and concertedmilitaryoperations and to implement this Protocol’.286

The provisions of Common Article 3 and the Additional Protocolsimpose duties on non-state parties in a seemingly unproblematic way.It might be questioned, however, how non-state groups can be bound byrules to which they are not formal parties. The explanation offered bythe ICRC Commentary is that the commitment made by a state appliesalso to any established authorities and private individuals within itsterritory.287 International obligations – as well as international rights –can therefore be imposed upon individuals and other non-state entitieswithout their approval, according to the Commentary.288 It has alsobeen confirmed by the ICTY that not only states but also non-state actorssuch as terrorist groups or organisations can be responsible for acts ofgenocide and crimes against humanity.289 Customary international lawthus places non-state actors under an obligation not to commit suchcrimes. The adoption of the Statute of the International Criminal Courthas taken the development of international humanitarian obligationsfor non-state entities even further.290

286 Article 1(1). As to the definition of the non-state party to the conflict, see Commentary onthe Additional Protocols, pp. 1351–1353, and Antonio Cassese, ‘The Status of Rebels underthe 1977 Geneva Protocol on Non-International Armed Conflicts’, in Judith Gardam(ed.), Humanitarian Law, Dartmouth: Ashgate, 1999, pp. 241–264.

287 Commentary on the Additional Protocols, p. 1345. For a thorough account of the problemof the origin of obligations of armed groups under interstate treaties, see Zegveld,The Accountability of Armed Opposition Groups in International Law, pp. 15 ff.

288 The issue is, however, not unproblematic. The question of assent by the non-stateparty to rights and duties under Article 3 and the Additional Protocols is discussed byCassese, ‘The Status of Rebels’, pp. 253–255. As regards individuals, see the East GermanBorder Guard case, German Federal Constitutional Court, 24 October 1996, in 18 HRLJ(1997), pp. 65–78. As regards insurrectional movements which become a government,see Article 10 of the Draft Articles on State Responsibility, A/56/10, Report of theInternational Law Commission, 2001, p. 45. Van Boven suggests that the duties ofnon-state actors to comply with international law ‘must be regarded as inherentlylinked with the claim that they qualify as acceptable parties in national andinternational civil society’, Theo Van Boven, ‘Non-State Actors; IntroductoryComments’, in Theo Van Boven et al. (eds.), The Legitimacy of the United Nations: Towardsan Enhanced Legal Status of Non-State Actors, Netherlands Institute of Human Rights, SIMSpecial, 19, Utrecht, 1997, p. 8.

289 ICTY, Prosecutor v.Dusko Tadic a/k/a ‘Dule’, Judgement of 7May 1997, paras. 654–655. TheTribunal referred to, inter alia, the ILC’s Draft Code of Crimes Against the Peace and Securityof Mankind, in A/51/10, Report of the International Law Commission, 1996, pp. 93–96.

290 A/CONF.183, Rome Statute of the International Criminal Court, 17 July 1998. For instance,Article 7(2)(a) states that ‘Attack directed against any civilian population’ should beunderstood as ‘a course of conduct involving themultiple commission of acts referred


International humanitarian law and humanitarian organisations

The presence of international humanitarian organisations in situationsof armed conflict goes back a long way. The long history and specialstatus of the Order of Malta, as well as the important role and status ofthe ICRC in international humanitarian law, have been described ear-lier. The Geneva Conventions and their Additional Protocols include awide set of rules regulating the work and protection of humanitarianpersonnel and organisations.291 While some of these rules apply speci-fically to different bodies of the Red Cross and Red Crescent Movement,others refer to humanitarian organisations in general.

It should first be observed that the ICRC does not consider itself to bean NGO, although it falls roughly into the definition of ‘NGO’ usedhere.292 The International Red Cross and Red Crescent Movement alsoembraces the National Societies and the International Federation of RedCross and Red Crescent Societies, which are likewise understood asNGOs for the purpose of the study.293 Nevertheless, provisions of huma-nitarian law which refer to humanitarian organisations in general,rather than solely to the International Red Cross and Red CrescentMovement or its different components, are of primary interest to thisstudy on the legal status of NGOs, and the focus will therefore be onthose provisions.

There are a considerable number of provisions in the GenevaConventions (GC) and their Additional Protocols (AP) which refer tohumanitarian organisations.294 The direct references include:

to in paragraph 1 against any civilian population, pursuant to or in furtherance of aState or organizational policy to commit such attack’ (emphasis added).

291 It can also be observed that NGO personnel deployed by a humanitarian NGO for a UNoperation for the purpose ofmaintaining or restoring international peace and securityis afforded protection by the Convention on the Safety of United Nations Personnel,adopted by A/RES/49/59, 9 December 1994.

292 See section 2.4.293 For information on the character and status of the International Federation of the Red

Cross and Red Crescent Societies and on the national societies, see Yves Beigbeder, TheRole and Status of International Humanitarian Volunteers and Organizations: The Right and Dutyto Humanitarian Assistance, Dordrecht: Martinus Nijhoff, 1991, pp. 61–78; ChristopheLanord, ‘The Legal Status of National Red Cross and Red Crescent Societies’,International Review of the Red Cross, No. 840 (2000), pp. 1053–1077; and Peter Nobel, ‘TheRed Cross–Red Crescent Movement: A Model for Non-State Participation?’, in VanBoven, The Legitimacy of the United Nations, pp. 77–86.

294 Convention (I) for the Amelioration of the Condition of the Wounded and Sick inArmed Forces in the Field, 1949, Convention (II) for the Amelioration of the Conditionof Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, 1949,


Common Article 3 of the Conventions:

Article 9 of GC I, II and III and Article 10 of GC IVArticle 10 of GC I, II and III and Article 11 of GC IVGC I, Articles 18, 26, 28, 34, 44, 53GC II, Articles 14, 24, 25GC III, Articles 33, 35, 72, 75, 123, 125GC IV, Articles 15, 26, 30, 39, 53, 59, 61, 63, 96, 98, 140, 142AP I, Articles 5, 8, 9, 17, 32, 60, 81AP II, Articles 12, 18.

There is no need for a discussion of all these provisions here; the GenevaConventions and Additional Protocols have been elaborately describedelsewhere. Within the framework of a study on the international legalstatus of NGOs, the most interesting provisions and aspects are thefollowing.

The different expression used in the Geneva Conventions and theAdditional Protocols for referring to NGOs include ‘the InternationalCommittee of the Red Cross’, ‘National Red Cross Societies’, ‘any otherimpartial humanitarian organization’ or ‘body’, ‘other Voluntary AidSocieties, ‘an organization which offers all guarantees of impartialityand efficacy’, ‘international religious organizations’, ‘any other organiza-tion giving assistance to prisoners’, ‘relief societies’ and ‘social or coop-erative organizations’. It is interesting to note that such diverse categoriesof NGOs are afforded rights, protection and obligations under interna-tional humanitarian law. Because of the general recognition and supportfor the ICRC and the national societies of the Red Cross and Red Crescent,it is probable that the possibilities for other organisations to act under theprovisions are seldom used in practice; that would be an interesting fieldfor research in itself. Nevertheless, the possibilities are there and they doindeed confer legal status on any NGO which falls under the categoriesmentioned and which decides to act under the provisions.

According to Common Article 3, para. 2 of the Conventions, an‘impartial humanitarian body, such as the International Committee ofthe Red Cross, may offer its services to the parties of the conflict’ in thecase of a conflict not of an international character. This Article

Convention (III) relative to the Treatment of Prisoners of War, 1949, Convention (IV)relative to the Protection of Civilian Persons in Time of War. Geneva, 1949, ProtocolAdditional to the Geneva Conventions of 12 August 1949, and relating to theProtection of Victims of International Armed Conflicts (Protocol I), 1977, ProtocolAdditional to the Geneva Conventions of 12 August 1949, and relating to theProtection of Victims of Non-International Armed Conflicts (Protocol II), 1977.


represents what is often described as a convention ‘in miniature’ whichprohibits protected persons from certain acts. It is of special import-ance, as it is automatically applicable without any condition of recipro-city, and since several states have still not ratified Additional Protocol IIrelating to non-international armed conflicts.295 The Commentary tothe provision notes that it ‘is obvious’ that any organisation can offer itsservices. The importance lies in the fact that the codification of thispossibility means that it cannot be regarded as an unfriendly act to offercharitable services.296 It is also obvious, according to the Commentary,that it is in the first place for the National Red Cross Society of eachcountry to offer help. Sometimes, however, this may not be possible.The provision therefore leaves it open for any ‘impartial body’ to offerits services. For such offers to be legitimate and acceptable, they mustcome from an organisation which is ‘both humanitarian and impartial’,the Commentary explains. The ICRC is mentioned as an example ofsuch a body.297 The organisations which fall into that category arefurther specified in the Commentary on Article 9 of GenevaConvention I, which states that:

The provisions of the present Convention constitute no obstacle to the huma-nitarian activities which the International Committee of the Red Cross or anyother impartial humanitarian organization may, subject to the consent of theParties to the conflict concerned, undertake for the protection of wounded andsick, medical personnel and chaplains, and for their relief.

Article 9 of Geneva Convention I, II and III and Article 10 of GenevaConvention IV have a similar wording, adjusted only to the subjectmatter of the respective Conventions. As it ismainly on behalf of prison-ers of war and civilians that humanitarian organisations carry outhumanitarian assistance, the practical scope of Article 9/10 is greaterin Geneva Convention III and IV. The meaning of the provision is thatnone of the other provisions of the Conventions excludes humanitarianparticipation on the part of the ICRC or a similar organisation. Althoughthe Article thus leaves the door open for humanitarian NGOs to providehumanitarian assistance in armed conflict, it at the same time clarifiesthat the consent of the state parties to the conflict is a general condition.

295 Pictet (ed.), The Geneva Conventions, p. 48. (The four ICRC commentaries – I GenevaConvention, 1952, II Geneva Convention, 1960, III Geneva Convention, 1960, andIV Geneva Convention, 1958 – will hereafter be referred to as ‘Commentary I’,‘Commentary II’, etc.)

296 Commentary I, pp. 57–58. 297 Ibid., pp. 58–59.


The Commentary observes that: ‘A belligerent Power can obviously notbe obliged to tolerate in its territory activities of any kind of foreignorganization. That would be out of the question.’298 The Conventionsand the Protocols thus do not establish a ground for a right for humani-tarian organisations to provide humanitarian assistance, even if the pos-sibility of a development in this areahas been discussed by, amongothers,the International Conference of the Red Cross and Red Crescent.299 Itshould be observed that, to the extent that other provisions of theConventions establish rights for humanitarianNGOs providing assistanceor obligations of state parties in relation to these organisations, suchrights and obligations are conditioned by the consent of the conflictingparties to the presence of humanitarian organisations in the first place.

As regards the organisation comprised by the Article, the draft provi-sion presented at the Diplomatic Conference in 1949 referred only to theICRC. As therewas a general fear that such awording could close the doorto other organisations, the Article was adopted without opposition withthe addition ‘or any other impartial humanitarian organization’.300 Justas in Article 3 para. 2, the ICRC is mentioned as an example of what ismeant by an ‘impartial humanitarian organization’. The Commentarystates regarding the characteristics of approved organisations that:

It is necessary for the organization to be humanitarian; in other words it must beconcerned with the condition of man, considered solely as a human beingwithout regard to the value which he represents as a military, political, profes-sional or other unit. And the organization must be impartial. Article 9 does notrequire it to be international. As the delegate representing the United States atthe Conference remarked, it would have been regrettable if welfare organiza-tions of a non-international character had been prevented from carrying outtheir activities in time of war.301

298 Ibid., p. 110.299 The 26th International Conference of the Red Cross and Red Crescent (Geneva,

3–7 December 1995) recognised ‘the right of humanitarian agencies – abiding by theprinciples of humanity, neutrality, impartiality and independence – to have accessto victims’, Resolution No. 4 of the Conference, Principles and Action in InternationalHumanitarian Assistance and Protection, Preamble, para. 7. The resolution was adopted byconsensus by the Conference, in which 143 States Party to the Geneva Conventionsparticipated. See also Christina Rottensteiner, ‘The Denial of Humanitarian Assistanceas a Crime under International Law’, International Review of the Red Cross, No. 835 (1999),pp. 555–582 and David P. Forsythe, ‘International Humanitarian Assistance: The Roleof the Red Cross’, 3 Buffalo Journal of International Law (1996), pp. 235–260.

300 Commentary I, p. 197.301 Ibid., p. 108 (emphasis in original).


The activities of the organisation are also subject to certain conditions –theymust be purely humanitarian in character andmust not be affectedby any political ormilitary considerations. It follows from the text of theArticle that the organisation and its activities must be impartial. Thismeans that choices that are made in the distribution of relief assistancemust not be dictated by prejudice or by considerations regarding theperson of those who are given or refused assistance.302

Article 10 is common to Geneva Conventions I, II and III. Article 11 ofGeneva Convention IV has an identical wording. These provisions statethat the contracting parties may agree to ‘entrust to an organizationwhich offers all guarantees of impartiality and efficacy the dutiesincumbent on the Protecting Powers by virtue of the presentConvention’. Thus, under Article 10 of Geneva Convention I–III, andArticle 11 of Geneva Convention IV, states have the option to choose anorganisation to assume the responsibilities of a protecting power, i.e. tosafeguard the interests of a party, according to its instructions, in rela-tion to other states.303 For example, a protecting power may visitprisoners of war or safeguard the interests of the civilian population inoccupied territory. The provision is sometimesmentioned in relation tothe ICRC as a demonstration of its special status under internationalhumanitarian law. The ICRC is the only organisation explicitly men-tioned, which does indeed give it a special status. Nonetheless, it isinteresting to note that the role of a protecting power may be playedby another impartial and efficient NGO.

The requirement of impartiality for an organisation to be appointedas substitute for a protecting power should be understood as inCommon Article 3. As regards the requirement of efficacy, theCommentary explains that:

it is difficult to define here the conditions for ‘efficacy’, since they will dependon the nature, extent and degree of localization of the conflict. The guaranteesof efficacy are to be soughtmainly in the financial andmaterial resources whichthe organization has at its command and, evenmore perhaps, in its resources inqualified staff. Its independence in relation to the Parties to the conflict, theauthority it has in the international world, enabling its representatives to dealwith the Powers on a footing of equality, and finally its accumulated experience –all these are factors calculated to weigh heavily in deciding the parties to agreeto its appointment. Without such agreement the special organization to which

302 Ibid., p. 109.303 The role of a protecting power is described in Article 8 of Geneva Convention I–III

and in Article 9 of Geneva Convention IV.


paragraph I relates cannot be appointed; and in the absence of such agreementthe duties for which the Convention provides fall automatically to theProtecting Powers.304

Obviously, there is no right for an organisation to be appointed to takeon the responsibilities of a protecting power, but a possibility foreach organisation that fulfils the criteria, and the necessary degree ofrecognition within the international community, to enjoy this status.

Under Article 18, para. 2: ‘The military authorities shall permit theinhabitants and relief societies, even in invaded or occupied areas,spontaneously to collect and care for wounded or sick of whatevernationality.’ Individual inhabitants and relief organisations in the con-flict area thus have a right to undertake relief action under this provi-sion. It may be observed that there are no special requirements for anorganisation to qualify for this right.305

Article 24 of Geneva Convention I states that medical personnelexclusively engaged in searching and caring for the wounded or sick,as well as administrative staff and chaplains engaged in related activ-ities, have the right to be ‘respected and protected in all circumstances’.According to Article 26, the staff of national Red Cross societiesand of other voluntary aid societies, duly recognised and authorisedby their governments, who are employed on the same duties as thepersonnel named in Article 24, have the right to the same respect andprotection. That an NGO is ‘duly recognised and authorised’ byits government means that, in order for the organisation to enjoyprotection, the government of its home country has to have recognisedit as auxiliary to its own medical service and authorised it to lendits assistance.306 Personnel designated under Articles 24 and 26 alsoenjoy specific rights in case they fall into the hands of the adverseparty (see Article 28).

Article 44 is interesting because it formulates an obligation for orga-nisations and their staff employed in relief assistance not to use theemblem of the red cross on a white ground and the words ‘Red Cross’ or‘Geneva Cross’ other than in accordance with the Conventions. Theprovision is complemented by Article 53, which obliges state partiesto prohibit the use by individuals, societies, firms or companies, eitherpublic or private, of the emblem or designations in breach of the provi-sions of the Convention.

304 Commentary I, pp. 122–123. 305 Ibid., p. 189. 306 Ibid., p. 226.


Geneva Convention III relative to the treatment of prisoners of warincludes several provisions that refer to organisations. The most inter-esting of these for the purpose of the present study is Article 125, whichprovides that:

Subject to the measures which the Detaining Powers may consider essential toensure their security or to meet any other reasonable need, the representativesof religious organizations, relief societies, or any other organization assistingprisoners of war, shall receive from the said Powers, for themselves and theirduly accredited agents, all necessary facilities for visiting the prisoners, fordistributing relief supplies and material, from any source, intended for reli-gious, educational or recreative purposes, and for assisting them in organizingtheir leisure time within the camps. Such societies or organizations may beconstituted in the territory of the Detaining Power or in any other country, orthey may have an international character.

The Detaining Power may limit the number of societies and organizationswhose delegates are allowed to carry out their activities in its territory andunder its supervision, on condition, however, that such limitation shall nothinder the effective operation of adequate relief to all prisoners of war.

The special position of the International Committee of the Red Cross in thisfield shall be recognized and respected at all times.

It is striking that the scope as regards the organisations referred tois so broad – religious organisations, relief societies, or any otherorganisation assisting prisoners of war. This last expression was addedto the provision in order for public or semi-public institutions to beincluded. It also covers NGOs whose primary purpose is other thanto assist prisoners of war, and which are therefore not ‘relief societies’,but which assume this task temporarily. The provision includes norequirement that relief societies must be properly established accordingto the law of their country.307 As to the attitude and obligations of thedetaining powers, the Commentary explains that the Convention‘obliges the Detaining Power to treat the relief societies correctly andthus gives the most important humanitarian right to private societies,even foreign societies in most cases, to enter its territory’.308 It thusseems that, although this provision like many others relating to organ-isations, refers to the organisations’ representatives rather than to theorganisations as such, it does confer international rights or status on theorganisations as well. Paragraph 2 of the Article demonstrates that,although the consent of the conflicting parties is a general requirement

307 Commentary III, p. 595–596. 308 Ibid., p. 596.


for the presence of NGOs in a conflict area according to Article 9 of theConvention (see above), a detaining power may not always refuseconsent.

Geneva Convention IV deals with the protection of civilians. It istherefore natural that it includes many provisions which relate to thework of NGOs. According to Article 26:

Each Party to the conflict shall facilitate enquiries made bymembers of familiesdispersed owing to the war, with the object of renewing contact with oneanother and of meeting, if possible. It shall encourage, in particular, the workof organizations engaged on this task provided they are acceptable to it andconform to its security regulations.

Any organisation which satisfies both the conditions mentioned in theArticle (being acceptable to the parties of the conflict and conforming tosecurity regulations) must, as a rule, be allowed to carry out its work inconnection with the reuniting of families. Belligerents are not onlyrequired to tolerate such activities, but are under anobligation to supportand actively further the efforts of organisations engaged in the task.309

Under Article 30 of Geneva Convention IV, the ICRC, the National RedCross, Red Crescent or Red Lion and Sun Society, and any organisationthat may assist them, shall be granted all facilities for receiving applica-tions, communications, complaints, etc. from protected persons,within the bounds set by military or security considerations. UnderArticle 30, the detaining or occupying powers shall also facilitate, asmuch as possible, visits to protected persons by representatives of theICRC and other organisations whose object is to give spiritual aid ormaterial relief to such persons.310 The Commentary on this Articlestates that:

The Diplomatic Conference deliberately refrained from making the assistanceof such organizations subject to any condition, other than that of being capableof assisting those who ask for their help. Under circumstances where distressassumes such proportions that there can never be enough assistance, it isessential to call upon all possible sources of relief. These organizations, how-ever, whether national or international, must likewise strictly avoid, in theirhumanitarian activities, any action hostile to the Power in whose territory theyare working or to the Occupying Power. These principles, needless to repeat,govern all forms of relief organized in connection with the GenevaConvention.311

309 Commentary IV, p. 198. 310 Ibid., p. 214. 311 Ibid., pp. 217–218.


The Convention obliges the parties to the conflict not merely authoriseorganisations to carry out their work, but to facilitate and promote it.The authorities are under the duty to take all necessary steps to allowapproved organisations to take rapid and effective actionwherever theyare asked to give assistance.312 Article 30 should be read in conjunctionwith Article 142, which deals with the general obligation of detainingpowers to offer facilities for relief organisations which assist protectedpersons. While the two provisions in some respects duplicate eachother, they are complementary, as Article 142 defines relief societiesand describes their activities. According to Article 142, relief organisa-tions may be constituted in the territory of the detaining power, in anyother country, or may have an international character.313

Article 53 of Geneva Convention IV prohibits ‘Any destruction bythe Occupying Power of real or personal property belonging individuallyor collectively to private persons, or to the State, or to other publicauthorities, or to social or cooperative organizations . . . except wheresuch destruction is rendered absolutely necessary bymilitary operations’.The provision thus provides protection for NGOs, as well as anyother owner of property, within occupied territory from destructionof property.

Impartial humanitarian organisations, such as the ICRC, have theright under Article 59 of GC IV to undertake relief schemes in situationswhere the whole or part of the population of an occupied territory isinadequately supplied. All contracting parties to the Convention areobliged to permit the free passage of such consignments and to guaran-tee their protection.

Article 63 of Geneva Convention IV formulates the right for recog-nised national Red Cross (Red Crescent, Red Lion and Sun) societies inoccupied territories to pursue their activities in accordance with RedCross principles, as defined by the International Red Cross Conferences.Other relief societies have the right ‘to continue their humanitarianactivities under similar conditions’. This seems to mean, according tothe Commentary, that activities of an essentially humanitarian charac-ter cannot be interfered with by the occupation authorities.314

Article 142 of Geneva Convention IV is a provision of a generalcharacter which is of interest to all organisations engaged in relief forcivilian population. The provision is almost identical to Article 125 ofGeneva Convention III, with the exception of the last paragraph of the

312 Ibid., p. 218. 313 Ibid., p. 558. 314 Ibid., p. 332.


latter (omitted above).315 It also repeats some parts of Article 30. Asexplained above, the two provisions to some extent repeat each other,but are complementary in that Article 142 defines relief societies anddescribes their activities.316

Article 5, para. 3, of Additional Protocol I relating to the protection ofvictims in liberation wars formulates the right of the ICRC or any otherimpartial humanitarian organisation to offer its good offices to theparties to the conflict with a view to the designation without delay ofa protecting power. If no protecting power has been designated, theconflicting parties ‘shall accept without delay an offer which may bemade by the International Committee of the Red Cross or by any otherorganization which offers all guarantees of impartiality and effi-cacy . . . to act as a substitute’ (Article 5, para. 4). This paragraph thuscorresponds to Article 10 of Geneva Convention I–III and Article 11 ofGeneva Convention IV. There are also other provisions which repeatrights guaranteed for organisations in the Geneva Conventions – forexample, the right of aid societies to collect and care for the wounded,sick and shipwrecked (Additional Protocol II, Article 17, para.1) and theright to be offered ‘all facilities’ by the conflicting parties for the carry-ing out of humanitarian functions (Additional Protocol II, Article 81).Article 32 is interesting in the sense that it formulates a general obliga-tion for contracting parties, conflicting parties and humanitarian orga-nisations alike to ‘be prompted mainly by the right of families to knowthe fate of their relatives’ in the implementation of Section III relatingto missing and dead persons.

The provisions of Additional Protocol II relating to the protection ofvictims of non-international armed conflicts become increasinglyimportant as civil wars become more frequent. However, it includesonly one provision which explicitly refers to humanitarian NGOs. Article18 regarding relief societies and relief actions is important because itpermits and facilitates humanitarian activities in non-internationalarmed conflicts, while Common Article 3 of the Conventions does notmention relief actions. According to the Article, ‘Relief societies locatedin the territory of the High Contracting Party, such as Red Cross(Red Crescent, Red Lion and Sun) organizations may offer their servicesfor the performance of their traditional functions in relation tothe victims of the armed conflict’, and ‘The civilian population may,

315 For commentary on Article 142, see Commentary IV, pp. 556–566.316 Ibid., p. 558.


even on its own initiative, offer to collect and care for thewounded, sickand shipwrecked’. The Commentary explains that:

The whole of this provision is based on the principle that States are primarilyresponsible for organizing relief. Relief societies such as the Red Cross and RedCrescent organizations are called upon to play an auxiliary role by assisting theauthorities in their task. The term ‘relief society’ should be understood in itstraditional broad sense. The Red Cross Movement, while playing a role of primeimportance, does not have a monopoly on humanitarian activities, and thereare other organizations capable of providing effective assistance.317

The ‘traditional broad’ meaning of ‘relief society’ is based on the usageof this expression in the Conventions, for instance Articles 18 and 26 ofGeneva Convention I.318 According to Article 18, para. 2, relief actions‘which are of an exclusively humanitarian and impartial nature andwhich are conducted without any adverse distinction’ shall be under-taken in situations where the civilian population is suffering unduehardship owing to a lack of the supplies essential for its survival, suchas foodstuffs and medical supplies, provided that the state concernedgives its consent. However, the fact that consent is required does notmean that the decision is left to the discretion of the parties. If thesurvival of the population is threatened, and a humanitarian organisa-tion fulfilling the required conditions of impartiality offers assistancewhich might remedy this situation, the authorities responsible cannotrefuse relief without good grounds.319 Such a refusal would be a viola-tion of Article 14 of the Protocol, which prohibits the use of starvation asa method of combat.320 There is thus no explicit right for humanitarianorganisations to deliver assistance in such situations, but somethingthatmight be regarded as an implied right, provided that the situation isgrave and the other conditions mentioned in the provision are met.

4.5 Conclusions

The individual human rights which aremost closely connectedwith theactivities of NGOs, such as the right to freedom of association and

317 Commentary on the Additional Protocols, p. 1477. 318 See above.319 Commentary on the Additional Protocols, p. 1479.320 Ibid., and Peter Macalister-Smith, International Humanitarian Assistance: Disaster Relief

Actions in International Law and Organization, Dordrecht: Martinus Nijhoff, 1985, p. 31.See also Article 54 of Protocol I and Rottensteiner, ‘The Denial of HumanitarianAssistance’, pp. 555–582.


assembly and the right to freedom of expression, enjoy strong protec-tion under international law. It is clear that NGOs benefit from theclear recognition of these rights. Further, NGOs as such are guaranteedbasic rights, organisation rights, in international and regional treaty law.While a number of individual human rights are recognised underinternational customary law, evidence of corresponding organisationrights under customary law would, on the other hand, probably bedifficult to find.

The rules relating to the rights of organisations form a rather complexpattern because of the large number of instruments, and the differentmaterial and geographical scope of these instruments. As a result, thelegal status of NGOs of different categories, as well as in different geo-graphical regions, varies. NGOs in the states parties to the EuropeanConvention on Human Rights have a strong position through theirstanding as victims before the Court and the clear recognition of organ-isation rights in case-law of the European Court of Human Rights. Thefact that NGOs have instituted cases before the convention monitor-ing bodies alleging violations of a wide range of rights, including theright to freedom of association and assembly, the right to freedom ofexpression, the right to freedom of religion and the right to a fair trial,demonstrates that NGOs can be holders of all convention rights whichare not of a clearly physical or otherwise individual character.

On the international plane, trade unions enjoy substantial protectionbecause of the guarantee of the right to form and join trade unions andthe rights of trade unions to act without interference and to bargaincollectivelyunder international labour conventionsandregionalhumanrights treaties. These rights are also monitored under several differentmechanisms, such as the freedom of association procedures under theILO, the state reporting and complaints mechanisms under the UNhuman rights system, the collective complaints mechanism within theCouncil of Europe and the regional systems of human rights protection.

In other areas, however, the protection of NGOs as such is not asstrong. Within the Inter-American system, for example, the rights ofjuridical entities are not recognised,whichmeans thatNGOs are affordedprotection only through the individual rights of their members. In otherwords, a European trade union has a considerably stronger position than,for instance, anAmerican orAsianNGOactive outside the field of labour.

Environmental NGOs within the territory of state parties to theConvention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters as part of ‘the


public’ and ‘the public concerned’ have the rights of access to informa-tion, public participation in decision-making and access to justice inenvironmental matters. Such NGOs also have the right to appropriaterecognition and support from state parties, whichmust see to it that theirnational legal systems are consistent with this obligation. Internationalhumanitarian law, for its part, provides impartial humanitarian NGOswith several international rights, provided that the conflicting partiesconsent to the assistance of the organisations.

The field of international obligations of NGOs has not developedmuch as yet. There are good reasons for not bestowing internationallegal obligations on non-state actors outside some clearly defined areas,such as humanitarian law. Nevertheless, some areas of present respon-sibilities and possible future development can be discerned. IGOs whichestablish formal co-operation with NGOs require them to abide bycertain rules, and NGOs which enter into operational co-operationwith IGOs undertake contractual obligations. In addition, there is thedeveloping field of voluntary codes of conduct, in which NGOs agree tofollow certain norms, mainly within the field of humanitarian assis-tance. The different fields that relate to the international responsibil-ities of NGOs interact in a way which strengthens the normativeforce of formally non-binding instruments, as contracts on IGO–NGOco-operation sometimes refer to codes of conduct. It is possible that thisareawill develop, as it is in the interest ofmanyNGOs to adhere to codesthat can increase their support and goodwill among both the public andthe state community.


5 Standing before international judicialand quasi-judicial bodies

5.1 Introduction

In an article published in 1947, Sir Hersch Lauterpacht observed that: ‘Itwould thus appear that there is nothing inherent in the structure ofinternational law which prevents individuals and, generally, personsother than States frombeing parties to proceedings before internationaltribunals.’1 He was right. States are increasingly institutionalising theparticipation of non-state actors in international proceedings. This isparticularly true concerning regional human rights mechanisms.

This chapter contains a description of the extent towhichNGOs enjoysuch procedural capacity in international law. The survey has twomaincomponents. It describes the existence and content of rules whichprovide some sort of locus standi to NGOs, and it includes a survey ofcases instituted by NGOs intended to give a rough outline of the activityof NGOs before international tribunals and quasi-judicial bodies and thetypes of cases brought by them.

As regards the case-law material, a couple of points need to beexplained. First, it has been necessary to limit the number of mechan-isms and cases studied, for practical reasons. Secondly, the group ofactors which is allowed to institute proceedings under the designation‘non-governmental organisation’ is differently defined within the dif-ferent mechanisms, and these definitions do not always correspond tothe one adopted in the present study.2 It would be too time-consumingto investigate whether the particular organisations acting which havefiled in the different cases are ‘NGOs’ in the meaning of the term as it

1 Hersch Lauterpacht, ‘The Subjects of the Law of Nations’, 63 The Law Quarterly Review(1947), p. 453.

2 See section 1.3.

218

has been defined here. It can be mentioned as an example that ‘non-governmental organisation’ as used in the European Convention forHuman Rights includes commercial entities. I have tried to excludesuch cases from the study by using the name of the case and theinformation given in the introductory part of the judgement, but it isnot completely certain that all commercial entities have been excluded.It should therefore be borne in mind that the figures presented con-cerning NGO participation in international and regional proceedingsare to be seen as an estimate rather than accurate statistics.

5.2 International bodies

The International Court of Justice

It is, of course, clear that private parties cannot institute cases beforethe ICJ. Article 34 of the Court’s Statute provides that: ‘Only states maybe parties before the Court.’ The scope of entities entitled to request theICJ to give an advisory opinion in accordance with Articles 65 and 96 ofits Statute is wider, but non-state actors are excluded from this possibil-ity as well. Apart from states, only the UN General Assembly, theSecurity Council and other organs of the United Nations and specialisedagencies may request the Court to give an advisory opinion. Access tothe PCIJ was likewise restricted to states, both in contentious cases andfor advisory opinions.3

Nevertheless, it can be observed that – in spite of the restrictive ruleson locus standi before the ICJ – NGOs sometimes act behind the scenes.A famous example is the NGO campaign which led to the ICJ Nuclear

Weapons Advisory Opinion.4 The project was launched in 1992 by threeNGOs, the International Physicians for the Prevention of Nuclear War,the International Peace Bureau and the International Association ofLawyers Against Nuclear Arms.5 The World Court Project sought to

3 Article 35 of the PCIJ Statute reads: ‘The Court shall be open to the Members of theLeague and also to States mentioned in the Annex to the Covenant.’

4 On the role of NGOs in bringing this issue before the Court, see, e.g., Judge RosalynHiggins, ‘The Reformation in International Law’, in Richard Rawlings (ed.), Law, Societyand Economy: Centenary Essays for the London School of Economics and Political Science 1895–1995,Oxford: Clarendon Press, 1997, p. 215 and Philippe Sands, ‘International Law, thePractitioner and Non-State Actors’, in Chanaka Wickremasinghe (ed.), The InternationalLawyer as Practitioner, London: The British Institute of International and ComparativeLaw, 2000, p. 103.

5 Ved P. Nanda and David Krieger, Nuclear Weapons and the World Court, New York:Transnational Publishers, 1998, p. 70.

S TAND ING BEFORE INTERNAT IONAL BOD IES 219

influence member states at the WHO and the UN General Assembly tosponsor a resolution requesting an advisory opinion on the legality ofusing or threatening to use nuclear weapons. Naturally, the idea wasthat the ICJ should declare the use of nuclear weapons wholly illegal.Although theWorld Court Project was not formed until 1992, the idea ofseeking an advisory opinion on the legality of nuclear weapons haddeep roots within groups of civil society. For instance, the Lawyers’Committee on Nuclear Policy, formed as early as 1982, saw the idea asan integral part of its work.6

In 1992, there was intensive lobbying by the World Court Project atthe WHO. The result of this lobbying was that fourteen governmentsagreed to sponsor a resolution at the World Health Assembly, which inits turn led to the adoption by the Assembly the following year of aresolution requesting an advisory opinion from the ICJ on the legality ofthe use of nuclear weapons.7 The resolution, however, met strongopposition within the organisation, and some states considered thatthe request addressed an issue beyond the WHO’s competence.8 As iswell known, the Court found that it was not able to give the advisoryopinion requested by the WHO, since the question asked was not con-sidered to be one arising within the scope of the activities of theorganisation.9

TheWorld Court Project also began to lobby the UNGeneral Assemblyin 1992. In spite of strong opposition fromnuclear weapon states as wellas other countries, the Assembly adopted a resolution in December1994 requesting the ICJ ‘urgently to render its advisory opinion on thefollowing question: ‘‘Is the threat or use of nuclear weapons in anycircumstance permitted under international law?’’’10

6 Ibid., p. 71. Another initiative with the same objective was a Nuclear WarfareTribunal organised in London in 1985 by the UK Ecology Party and Lawyers for NuclearDisarmament. The Tribunal, which included Richard Falk among its members,recommended the initiation of an effort to obtain an advisory opinion of the ICJ, Nandaand Krieger, Nuclear Weapons, p. 72. See also the description of the history of thecampaign contained in Written Statement of the Government of the United Kingdom,International Court of Justice, Legality of the Threat or Use of Nuclear Weapons, June1995, paras. 2.2–2.3.

7 Nanda and Krieger, Nuclear Weapons, p. 81.8 Laurence Boisson de Chazournes and Philippe Sands, (eds.), International Law, theInternational Court of Justice and Nuclear Weapons, Cambridge University Press, 1999, p. 4.

9 Legality of the Use by a State of Nuclear Weapons in Armed Conflict, Advisory Opinion of 8 July1996, ICJ Reports, 1996, p. 84.

10 Nanda and Krieger, Nuclear Weapons and the World Court, pp. 82–83 and A/RES/49/75 K,Request for an Advisory Opinion, 15 December 1994.


The World Court Project obtained the support of more than 700groups of civil society. Through these groups, the Project gathered‘Declarations of Public Conscience’, in which individuals declaredtheir opposition towards nuclear weapons. In June 1994, around170,000 such declarations were presented to the ICJ Registrar, whoreceived them and indicated that he would draw the judges’ attentionto them. At the outset of the oral hearings at the ICJ in October 1995,more than 3.5 million Declarations of Public Conscience were pre-sented to the Court.11 The material was not regarded as formal submis-sions to the Court but nevertheless made some impact on theproceedings.

Interestingly, the issue of the strong involvement of civil society inthe issue brought to the ICJ was regarded as a relevant issue by somestates as well as by some of the judges. The United Kingdom, which wasopposed to the Court delivering an advisory opinion on the matter,gave a rather thorough description of the NGO activity preceding theUN General Assembly resolution in its written statement to the ICJ.12

This activity was not mentioned as a problem as such, but as it wasdescribed in the context of the controversies in the General Assemblyand the opposition with which the resolution was met, the text never-theless gives the impression that the UK government sought to stressthe political (and thus ‘non-legal’) character of the issue put to theCourt.13 The government of France did not refer explicitly to the NGOcampaign, but stated that ‘cette question n’est pas de nature juridique’.14

A couple of judges referred to the NGO campaign in their opinions.Judge Oda gave a thorough description of the NGO activity and itslobbying efforts in his Dissenting Opinion, and summarised: ‘Thisgives the impression that the Request for an advisory opinion whichwas made by the General Assembly in 1994 originated in ideas devel-oped by some NGOs.’15 The description of the campaign wasmentioned

11 Nanda and Krieger, Nuclear Weapons, p. 80.12 Written Statement of the Government of the United Kingdom, International Court of Justice,

Legality of the Threat or Use of Nuclear Weapons, June 1995, paras. 1.2, 2.2–2.3.13 See also Boisson de Chazournes and Sands, International Law, pp. 9–10.14 Expose ecrit du Gouvernement de la Republique francaise, June 1995, p. 12. Regarding the

reactions from states on the involvement of NGOs, see also Roger S. Clark andMadeleine Sann (eds.), The Case against the Bomb: Marshall Islands, Samoa, and SolomonIslands before the International Court of Justice in Advisory Proceedings on the Legality of the Threator Use of Nuclear Weapons, Rutgers University School of Law, 1996, p. 15.

15 Legality of the Use by a State of Nuclear Weapons in Armed Conflict, Dissenting Opinion ofJudge Oda, ICJ Reports, 1996, pp. 335–336. See also Judge Oda’s Dissenting Opinion to

STAND ING BEFORE INTERNAT IONAL BOD IES 221

as a factor pointing to ‘The Inadequacy of the Question put by theGeneral Assembly in the Resolution as the Request for AdvisoryOpinion’. Judge Guillaume also described the General Assembly resolu-tion as originating in NGO activity in his Separate Opinion andstated that:

I am sure that the pressure brought to bear in this way did not influence theCourt’s deliberations, but I wondered whether, in such circumstances, therequest for opinions could still be regarded as coming from the Assemblieswhich had adopted them or whether, piercing the veil, the Court shouldnot have dismissed them as inadmissible. However, I dare to hope thatGovernments and intergovernmental institutions still retain sufficient independ-ence of decision to resist the powerful pressure groups which besiege them todaywith the support of mass media. I also note that none of the States whichappeared before the Court raised such an objection. In the circumstances I didnot believe that the Court should uphold it proprio motu.16

Judge Guillaume thus suggested that the Court could have regardedthe resolutions as inadmissible because of the pressure from civilsociety. Clearly, his view is that the role of civil society should be limitedto the national plane and that governments should resist public opinionwhich ‘besiege[s]’ them on the international plane.

Judge Weeramantry, on the other hand, argued for an opposite view.He began the substantive part of his Dissenting Opinion by describingthe ‘wave of global interest unparalleled in the annals of this Court’ andobserved that the signatures and other material sent to the Court evi-denced a groundswell of global opinion which was ‘not without legalrelevance’.17 In a section of his Opinion titled ‘The Attitude ofthe International Community Towards Nuclear Weapons’, JudgeWeeramantry stated that the law of the United Nations proceededfrom the law of the peoples of the United Nations. In addition todescribing the views of states concerning nuclear weapons, he observedthat ‘there is also a vast preponderance of public opinion across theglobe’ and mentioned the many NGOs formed with the objective of

the ICJ’s Advisory Opinion Legality of the Use by a State of Nuclear Weapons in Armed Conflictof 8 July 1996, ICJ Reports, 1996, pp. 92–96. The attitude towards NGOs is more clearlynegative in this Opinion, where Judge Oda stated that it seemed clear that the WHOrequest ‘was initiated by a few NGOs’, ibid., p. 96.

16 Legality of the Use by a State of Nuclear Weapons in Armed Conflict, Separate Opinion of JudgeGuillaume, ICJ Reports, 1996, pp. 287–288.

17 Ibid., Dissenting Opinion of Judge Weeramantry, ICJ Reports, 1996, p. 438.


protesting nuclear weapons, as well as themillions of signatures sent tothe Court. Judge Weeramantry thus seems to have regarded publicopinion on thematter in focus of the opinion as an argument in supportof the illegality of nuclear weapons.18

The majority of the Court found that there were no compellingreasons for it not to deliver an opinion on the question posed by theGeneral Assembly. In its Advisory Opinion, which was issued in July1996, the ICJ did not comment on the campaign which had precededthe adoption of the General Assembly resolution or the signatures whichhad been received by the Court.19 In other words, it did not regard thesecircumstances as legally relevant, either in relation to the questionwhether it should deliver the opinion, or in relation to the issue of thelegality of nuclear weapons as such. As the threat or use of nuclearweapons was not declared as clearly illegal in all circumstances, itmight have been seen as a disappointment for parts of the civil societycampaign which had exerted pressure for the Court’s examination ofthe issue. In light of the opposition from many states as regards theappropriateness of bringing the issue of nuclear weapons to the Court,the turn of events also raised questions about the accountability andlegitimacy of NGOs.20 Judge Rosalyn Higgins commented on the eventsin these words:

Clearly, to some, these radical phenomena represent the democratization ofinternational law. To others, it is both a degradation of the technical work ofinternational lawyers in the face of pressure groups and a side-steppingof existing international law requirements and procedures.21

18 Ibid., pp. 533–534. In the Case Concerning Application of the Convention on the Prevention andPunishment of the Crime of Genocide (Preliminary Objections), Judge ad hoc Kreca noted inhis Dissenting Opinion that ‘An unfavourable position regarding the principle ofuniversal punishment emerges also from declarations and reservations concerning theGenocide Convention, Communication of Governments, and by non-governmentalorganizations that have a consultative statuswith the Economic and Social Council’. ICJReports, 1996, p. 767.

19 Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion of 8 July 1996, ICJReports, 1996, pp. 226–267.

20 See statement by Philippe Sands, Plenary Theme Panel: The Challenge of Non-State Actors, inASIL Proceedings of the 92ndAnnualMeeting (1998), p. 31. The campaign has, however,also been described as an ‘NGO success story’, see Manfred Mohr, ‘Advisory Opinion ofthe International Court of Justice on the Legality of the Use of Nuclear Weapons underInternational Law – A Few Thoughts on its Strengths and Weaknesses’, InternationalReview of the Red Cross, No. 316 (1997), pp. 92–102.

21 Rosalyn Higgins, ‘The Reformation in International Law’, p. 215.


International criminal courts

The ICC has the power to exercise jurisdiction over persons for themostserious crimes of international concern.22 The Court may exercise itsjurisdiction if a situation, in which one or more crimes referred to in itsStatute appear to have been committed, is referred to the Prosecutor bya state party to the Statute or by the UN Security Council, or if theProsecutor has initiated an investigation proprio motu.23 It is, in otherwords, clear that NGOs cannot refer such a situation to the Court.However, when the Prosecutor analyses the seriousness of informationreceived, he or she may seek additional information from NGOs accord-ing to Article 15(2) of the Statute.

The Statute of the ICTY includes a similar provision.24 According toArticle 18 on the Investigation and preparation of indictment, theProsecutor ‘shall initiate investigations ex-officio or on the basis of infor-mation obtained from any source, particularly from Governments,UnitedNations organs, intergovernmental and non-governmental organ-izations’.25 An identical provision applies to the Prosecutor of theICTR.26 NGOs are thus officially mentioned as an important source ofinformation for all three international criminal courts.

The UN Treaty Bodies

The Human Rights Committee

The UN Human Rights Committee is a body of eighteen experts,appointed in their personal capacity, which has the task of monitoringthe contracting states’ compliance with the ICCPR of 1966. TheCommittee may also receive communications of alleged breaches ofthe Covenant under the Optional Protocol.27 A state which becomesparty to the Protocol recognises the competence of the Human RightsCommittee to receive and consider communications from individualswho claim that their human rights have been violated by that state.28

22 A/CONF.183/9, Rome Statute of the International Criminal Court, as corrected by theproces-verbaux of 10 November 1998 and 12 July 1999, Article 1.

23 Ibid., Article 13.24 Statute of the International Criminal Tribunal for the Former Yugoslavia, 25 May 1993,

as amended 30 November 2000.25 Emphasis added.26 Statute of the International Criminal Tribunal for Rwanda, 8 November 1994,

Article 17(1).27 Optional Protocol to the International Covenant on Civil and Political Rights (1966).28 Ibid., Article 1.


The Committee cannot issue binding judgements, only ‘forward itsviews to the state party concerned and to the individual’.29 As wasmentioned in chapter 4 the opinions delivered by the Committee are,however, publicised and generally considered as authoritative.30

The Committee started its work under the Optional Protocol in 1977.According to Article 2 of the Protocol, ‘individuals who claim that any oftheir rights enumerated in the Convention have been violated’ maysubmit a written communication to the Committee. The originalDutch draft to Article 2 also permitted communications from groupsof persons, and the admissibility of such communications was proposedin the Commission on Human Rights several times during the workwith the drafting of the Convention.31 A draft protocol presented by theUnited States permitted petitions from both individuals and fromNGOs. It was argued during the negotiations that NGOs with consulta-tive status with ECOSOC could better than individuals defend the inter-ests of humanity as a whole, since they would have to act with cautionthrough fear of criticism from the Council and from their members.32

These discussions on the right to petition demonstrate that the restric-tion to individuals in the text finally adopted in 1966 by the GeneralAssembly was intentional. It was likely motivated by the fear thatgroups of individuals or NGOs would use the right to petition forpolitical or propaganda purposes.33

Subsequently, it has been confirmed by the Committee’s jurispru-dence that organisations as such may not submit communications. InJ. R. T. and the W. G. Party v. Canada, the communication had been sub-mitted by an unincorporated political party. The Committee declaredthe part of the communication which concerned the political partyinadmissible with reference to the fact that it was an association,which could not as such submit a communication to the Committee.34

A similar case is A Group of Associations for the Defence of the Rights of Disabled

29 Ibid., Article 5(4).30 Dominick McGoldrick, The Human Rights Committee: The Role in the Development of the

International Covenant on Civil and Political Rights, Oxford: Clarendon Press, 1994,pp. 151–152 and Manfred Nowak, UN Covenant on Civil and Political Rights: CCPRCommentary, Kiel: N. P. Engel, 1993, p. xix. See also section 4.2.

31 Nowak, UN Covenant, pp. 657–658.32 Dominic McGoldrick, The Human Rights Committee: Its Role in the Development of the

International Covenant on Civil and Political Rights, Oxford: Clarendon Press, 1994, p. 123.33 Ibid., pp. 122–123 and Nowak, UN Covenant, p. 658.34 Communication No. 104/1981, A/38/40, Report of the Human Rights Committee, 1983,

p. 236.


and Handicapped Persons in Italy, etc. v. Italy.35 The authors of the commu-nication were a group of associations together forming an NGO(Coordinamento) and the representatives of those organisations. Theyclaimed that they were acting for the Coordinamento but also on theirown behalf. The Committee declared that

According to Article 1 of theOptional Protocol, only individuals have the right tosubmit a communication. To the extent, therefore, that the communicationoriginated from the Coordinamento, it has to be declared inadmissable becauseof lack of personal legal standing.36

Even if Articles 1 and 2 of the Optional Protocol had provided standingfor NGOs, their possibility of submitting communications would havebeen limited by the victim requirement as most of the rights set out inthe Convention are individual rights. Article 1 of the Convention, how-ever, formulates the collective right of self-determination. The questionof admissibility of a communication submitted by an individual onbehalf of a group allegedly subjected to a violation of the group rightto self-determination was actualised in the Mikmaq case.37 The commu-nication was declared inadmissible because of lack of authorisation,which seemed to indicate that, had the complainant been able to pro-vide sufficient evidence for his standing as a representative of thesociety, the communication would have been accepted. In the case ofLubicon Lake Band v. Canada, however, the Committee found that ‘theauthor, as an individual, could not claim under the Optional Protocol tobe a victim of a violation of the right to self-determination enshrined inArticle I of the Covenant, as it dealt with rights conferred upon peoplesas such’.38 The Committee’s practice means, on the one hand, that onlyindividual victims can submit communications and, on the other, thatonly groups may be considered to be victims of violation of the groupright to self-determination. The right to self-determination, containingno individual element, has thus been excluded from the procedure

35 Communication No. 163/1984, A/39/40, Report of the Human Rights Committee, 1984,pp. 197–198.

36 Ibid., p. 198. See also Communication No. R.9.40, Hartikainen v. Finland, which wassubmitted by the Secretary-General of the Union of Free Thinkers of Finland on behalfof the organisation as well as on his own behalf. The application was declaredinadmissible as far as the organisationwas concerned. A/36/40, Report of the Human RightsCommittee, 1981, p. 148.

37 Communication No. 78/1980, A.D. v. Canada, submitted on behalf of the Mikmaq tribalsociety, in A/39/40, Report of the Human Rights Committee, 1984, pp. 200–203.

38 Communication No. 167/1984, Lubicon Lake Band v. Canada, in 96 ILR (1994), p. 668.


under the Optional Protocol. The only solution for a group of personswhich has suffered a violation of the ICCPR is to file individual com-plaints. The Committee added in the Lubicon Lake Band case that there is‘no objection to a group of individuals, who claim to be similarlyaffected, collectively to submit a communication about allegedbreaches of their rights’.39 Such communications may be considered,for instance, under Article 27 on the rights of persons belonging tominorities.

An NGO which suffers a violation of the right of assembly underArticle 21 or the right of association under Article 22 of the Covenantcan thus submit a communication only by putting forward one or moreindividuals, not only because NGOs lack locus standi under the OptionalProtocol, but also because of the limitation to individual rights devel-oped in the practice of the Human Rights Committee.40 It can also beobserved that an individual affected by a violation suffered by a juridicalperson does not have locus standi before the Committee. In Lamagna v.Australia, the Committee declared the communication inadmissiblesince the alleged violation was committed against the author’s com-pany, which had its own juridical personality.41

The Committee may, in accordance with Rule 90(b) of its Rules ofProcedure, accept a communication submitted on behalf of an allegedvictim when it appears that the individual is unable to submit thecommunication personally.42 According to the practice of the HumanRights Committee, the condition for acceptance is that there is a stronglink between the victim and the author of the communication, such as aclose family connection.43 The Committee has also developed a clearinterpretation of the provision as regards communications submittedby others than family members in its case-law.

In L.A. on behalf of U.R. v. Uruguay, the victim was detained in a prison in Uruguay.

The author of the communication was a member of the Swedish Section of

Amnesty International and had been working on the alleged victim’s case

for two years. He claimed to have the authority to act on behalf of the victim

because he believed ‘that every prisoner treated unjustly would appreciate

further investigation of his case by the Human Rights Committee’. The

39 Ibid., p. 702. 40 See McGoldrick, The Human Rights Committee, p. 170.41 Communication No. 737/1997, Lamagna v. Australia, CCPR/C/65/D/737/1997, 30 April

1999, para. 6.2.42 HRI/GEN/3, Compilation of Rules of Procedure Adopted by Human Rights Treaty Bodies, p. 56.43 According to McGoldrick, the Committee has taken a fairly liberal approach to the

question of family connection. McGoldrick, The Human Rights Committee, p. 170.


Committee stated that a communication submitted by a third party on behalf of

an alleged victim can be considered only if the author can justify his authority to

submit the communication. As the Committee could not accept on the basis of

the information before it that the author had the authority to act, the commu-

nication was declared inadmissible.44

In the case of X. on behalf of S. G. F. v.Uruguay, the communicationwas submitted by

an NGO on behalf of a Uruguayan citizen living in Sweden. The organisation

stated that the request of S.G. F. for it to act on her behalf wasmade through close

friends living in France whose identity, however, the organisation felt unable to

disclose. The Committee noted that ‘No written evidence with regard to the

authority of the organization . . . to act on behalf of the alleged victim has been

provided’ and declared the communication inadmissible.45 Another, similar,

communication led to the same result.46

It is clear that NGOs are not regarded as having any general authority toact on behalf of alleged victims within their field of competence.47 Onthe other hand, although all the above communications were declaredinadmissible, the decisions demonstrate that an NGO can act on behalfof an individual victim provided that there is enough evidence regard-ing the NGO’s authority to do so.48

This is also in line with the possibility of an NGO acting as the dulyauthorised representative of a victimwho is not, in contrast to what wasthe case in the examples above, unable to submit the communication

44 CommunicationNo. 128/1982, in Selected Decisions of the Human Rights Committee, 2 (1990),pp. 40–41.

45 Communication No. 136/1983, in Selected Decisions of the Human Rights Committee,2 (1990), p. 43.

46 Communication No. 137/1983, X. on behalf of J. F. v. Uruguay, Selected Decisions of theHuman Rights Committee, 2 (1990), pp. 43–44. See also Communication No. 183/1984,D. F. on behalf of D. F. et al. v. Sweden, A/40/40, Report of the Human Rights Committee, 1985,pp. 228–229. The latter had similarities to an actio popularis, as the author submittedthe communication both on his own behalf and on behalf of Arabs and Muslims whohad allegedly been the constant target of discrimination and abuse in Sweden. Asimilar case was Communication No. 187/1985 (J. H. v. Canada) regarding allegeddiscrimination of persons of English mother tongue in Canada. The Committee statedthat it was not its task to review in abstracto national legislation or practices anddeclared the communication inadmissible with reference to the victim requirement.A/40/40, pp. 230–231.

47 Nowak holds that a provision allowing for communications to be submitted on behalfof someone who is unable to do so, ‘poses a danger that organizations might misuseit for popular complaints’. The Rule was therefore the subject of long discussionswithin the Committee. Nowak, UN Covenant, p. 662.

48 See also McGoldrick, The Human Rights Committee, p. 172.


personally. According to the above-mentioned Rule 90(b), a communi-cation should normally be submitted ‘by the individual personally or bythat individual’s representative’. Even though a lawyer with a writtenpower of attorney was what the Committee primarily had inmind here,the representative does not have to be a lawyer.49 The point is that therepresentative has to be specifically authorised by the victim to act onhis or her behalf. The possibility of acting as the duly appointed repre-sentative of a victim is not insignificant from a law-influencing perspec-tive since specialised NGOs can identify ‘pilot cases’. However, theappointment of NGOs or their officials as representatives of authors ofcommunications to the Human Rights Committee is not a commonphenomenon. The majority of authors are represented by counselsfrom law firms, and many individuals lack legal representation.

Nevertheless, the London-based human rights organisation Interightshas acted as the victim’s representative in a number of cases examinedby the Committee. The cases concerned issues related to death sen-tences and unfair trials.50 In the second and third of these cases,Interights argued that a long period of time spent on death row per seamounted to cruel, inhuman and degrading treatment in violation ofArticle 7 of the Covenant and contrary to the right under Article 10(1) tobe treated with humanity and respect for the inherent dignity of the

49 Nowak, UN Covenant, p. 661; McGoldrick, The Human Rights Committee, p. 134. See also thecases referred to below.

50 See communications 594/1992 (Phillip v. Trinidad and Tobago, CCPR/C/64/D/594/1992,3 December 1998); 554/1993 (LaVende v. Trinidad and Tobago, CCPR/C/61/D/554/1993,14 January 1998); 555/1993 (Bickaroo v. Trinidad and Tobago, CCPR/C/61/D/555/1993,14 January 1998); 665/1995 (Brown and Parish v. Jamaica, CCPR,/C/66/D/665/1995, 5 August1999); 668/1995 (Smith and Stewart v. Jamaica, CCPR/65/D/668/1995, 12 May 1999); 676/1996 (Yasseen and Thomas v. Guyana, CCPR/C/62/D/676/1996, 7 May 1998); 928/2000(Sooklal v. Trinidad and Tobago, CCPR/C/73/D/928/2000, 8 November 2001). Interights alsoassisted the author of communication 950/2000 (Sarma v. Sri Lanka, CCPR/C/78/D/950/2000, 31 July 2003). Interights has further acted on the national level in cases regardingthe death penalty in a number of countries, including Trinidad and Tobago andGuyana,Interights, Annual Review 98–99, pp. 21, 31. Two other human rights NGOs, AmnestyInternational and Human Rights Watch, have been frequently referred to by theauthors of communications and their counsels. References to reports, investigationsand press releases by Amnesty International have been made in a number of casesregarding prison conditions in Jamaica, e.g. 546/1993, 587/1994, 590/1994, 592/1994,607/1994, 611/1995, 619/1995, 634/1995, 639/1995, 640/1995, 647/1995, 649/1995, 653/1995, 730/1996, 734/1997. Material produced by Amnesty International has also beenmentioned in 328/1988 (Nicaragua), 706/1996 (Australia) and 458/1991 (Cameroon).Material produced by Human RightsWatch has beenmentioned in some of these cases,and in at least one additional case (663/1995, Jamaica).


person (the so-called ‘death row phenomenon’). The Human RightsCommittee has consistently rejected this argument, in spite of thecases brought by Interights, where two of the complainants had beenon death row for up to eighteen years.51 In some of the later cases,Interights focused on the conditions during detention and argued thatbad conditions could amount to violations of Articles 7 and/or 10(1),which has been accepted by the Committee. The Committee has alsoruled that the imposition of a sentence of death upon conclusion of atrial in which the fair trial guarantees in Article 14 of the Covenanthave not beenmet constitutes, if no further appeal against the sentenceis possible, a violation of the right to life in Article 6.52

A representative of another NGO, the Fundacion de Ayuda Socialde las Iglesias Cristianas, has acted as counsel in a couple of casesagainst Chile.53

The Draft Optional Protocol to the ICESCR

In 1996, a draft Optional Protocol for the submission of individualcommunications was adopted by the Committee on Economic, Socialand Cultural Rights and submitted to the Commission on HumanRights, where the matter is still under consideration.54 The proposedtext for Article 2 of the Draft reads:

Any individual or group claiming to be a victim of a violation by the State partyconcerned of any of the economic, social or cultural rights recognized in the

51 A/53/40, Report of the Human Rights Committee, 15 September 1998, para. 457; NataliaSchiffrin, ‘Current Development: Jamaica Withdraws the Right of Individual PetitionUnder the International Covenant on Civil and Political Rights’, 92 AJIL (1998), p. 564;McGoldrick, The Human Rights Committee, p. lxiii. Schiffrin is a senior legal adviser atInterights and has acted as counsel before the Human Rights Committee in several ofthe cases described above.

52 See, inter alia, the cases of Phillip v. Trinidad and Tobago (Communication No. 594/1992)and Yasseen and Thomas v. Guyana (No. 676/1996), described above.

53 The complainants argued that, with the application of its amnesty law in relation to anumber of persons who were executed in 1973, Chile had accepted the impunity ofthose responsible for the acts and renounced its obligation to investigate internationalcrimes, thereby violating Article 15(2) of the Covenant. Both applications were,however, declared inadmissible ratione temporis by the Committee as they concerneddeaths which had occurred prior to the entry into force of the Covenant in 1976.Communication No. 717/1996, Inostroza v. Chile, CCPR/C/66/D/717/1996, 16 September1999 and No. 746/1997, Aceituno and Vasquez v. Chile, CCPR/C/66/D/746/1997,4 August 1997.

54 As of August 2004.


Covenant, or any individual or group acting on behalf of such claimant(s), maysubmit a written communication to the Committee for examination.55

‘Groups’ are thus included both in the range of victims whomay submitcommunications and in the scope of actors whomay act on behalf of thevictim. NGOs are not expressly mentioned, and the issue whetherorganisations as such can be considered to be victims of violations ofthe rights set out in the ICESCR is not discussed in the Committee’sreport on the Protocol.56 The Committee did, however, discuss the issueof a victim requirement versus a broader rule on standing – for instance,one requiring ‘sufficient interest’ in the matter. It considered thatthe broader formulation, which would make it possible for a ‘publicinterest group or some other type of non-governmental organization’to bring a complaint without having to act with or on behalf of thealleged victim would, on the one hand, increase the capacity ofthe procedure to address every possible issue of relevance but, on theother, do this at the price of a vast number of complaints. The solutiondecided upon by the Committee was to extend the capacity to submit acomplaint to individuals or groups acting on behalf of alleged victims.The Committee noted, however, that ‘this formulation should be inter-preted only to embrace individuals and groups who, in the view of theCommittee, are acting with the knowledge and agreement of thealleged victim(s)’.57 It thus seems that the Protocol, if it is adopted,will include a wider possibility for NGOs to act than the OptionalProtocol to the ICCPR.

The Committee on the Elimination of Racial Discrimination

Article 14 of the International Convention on the Elimination of AllForms of Racial Discrimination (1965) authorises the Committee on theElimination of Racial Discrimination to receive and consider communica-tions from individuals or groups of individuals claiming to be victims ofa violation by a right set out in this Convention. It is, however, a conditionthat the state party in question has declared that it recognises thecompetence of the Committee to receive such communications. Thereis, in other words, no possibility for NGOs to submit communicationsin the capacity of victim of a violation. Nevertheless, communicationssubmitted on behalf of the alleged victim can be accepted by the

55 E/CN.4/1997/105, Status of the International Covenants on Human Rights, 18 December 1996,annex, para. 31.

56 Ibid., paras. 19–20. 57 Ibid., paras. 22–23.


Committee in exceptional cases when the victim is unable to submit thecommunication personally and the author can justify his or her actingon the victim’s behalf.58 Another possibility for NGOs to act under theConvention is to act as the representative of the alleged victim.

As of August 2004, the Committee had issued its decision on inadmis-sibility or on the merits in twenty-eight cases. In two cases, NGOs haveacted as petitioner, thereby giving the Committee the opportunity toformulate the scope of possibility for NGOs to act as petitioners beforethe Committee.

Communication No. 22/2002 was lodged by the Umbrella Organization for the

Ethnic Minorities (POEM), a Danish organisation with the aim of promoting

ethnic equality in all spheres of society, and the Association of Muslim Students

(FASM), which is also a Danish organisationwith the aim of raising awareness on

Muslim issues. The petition concerned a statement made by a leader of a Danish

political party which, according to the petitioners, was prejudicial and islamo-

phobic. Another organisation, the Documentation and Advisory Centre on

Racial Discrimination (DRC), reported the statement to the Danish police for

being in violation of the Criminal Code. The petitioners claimed that when such

statements are made in public, ‘both the petitioners and their members, includ-

ing the non-Muslims, are affected’.59 They argued that the state party had

violated several of its obligations under the Convention, such as the obligation

under Article 6 to ensure effective protection and remedies for everyone within

their jurisdiction. The Committee noted that none of the petitioners was a

plaintiff in the domestic proceedings and that the report to the Copenhagen

Police was submitted only by the DRC. It considered that it was a basic require-

ment under Article 14, para. 7(a) that domestic remedies have to be exhausted by

the petitioners themselves and not by other organisations or individuals. The

Committee therefore found that the communication was inadmissible under

the said Article.60

In the case regarding communication No. 28/2003, the DRC acted as petitioner,

represented byMsMohammad, who was the head of the board of trustees of the

Centre.61 The communication concerned a job advertisement which, according

to the petitioner, amounted to discrimination on the ground of national or

ethnic origin. The advertisement read: ‘The construction company BAC SIA

seeks Danish foreman.’ The petitioner reported the advertisement to the police,

alleging a violation of the prohibition against discrimination in respect of

employment and occupation on the labour market. The petitioner claimed

58 Rule 91(b) of the Committee’s Rules of Procedure, HRI/GEN/3, Compilation of Rules ofProcedure Adopted by Human Rights Treaty Bodies, 6 June 2001, p. 93.

59 POEM and FASM v. Denmark, CERD/C/62/D/22/2002, 15 April 2003, para. 2.3.60 Ibid., paras. 6.2–6.3. 61 DRC v. Denmark, CERD/C/63/D/28/2003, 26 August 2003.


that, as the head of the board of trustees, Ms Mohammad represented the DRC

when complaints were filed in her name. Although neither Ms Mohammad nor

any other person of non-Danish origin applied for the advertised job, she should

be considered a victim of the discriminatory advertisement, since it would have

been futile for her to apply for the post. Moreover, the petitioner itself should be

recognised as having the status of victim under Article 14 of the Convention,

since it represented a large group of persons of non-Danish origin discriminated

against by the job advertisement in question. In support of this claim, the

petitioner stated that both the police and the Regional Public Prosecutor had

accepted it as a party to domestic proceedings. The petitioner argued that it

followed from the travaux preparatoires to the Convention that the expression

‘individuals or groups of individuals’ in Article 14, para. 1, should be interpreted

broadly so as to be able to include NGOs among those entitled to bring a

complaint before the Committee. In its decision, the Committee stated that it

did not exclude the possibility that a group of persons representing, for exam-

ple, the interests of a racial or ethnic group, might submit an individual com-

munication, provided that it was able to prove that it had been an alleged victim

of a violation of the Convention or that one of its members had been a victim,

and if it was able at the same time to provide due authorisation to this effect. It

noted that, according to the petitioner, no member of the board of trustees

applied for the job. Moreover, the petitioner had not argued that any of the

members of the board, or any other identifiable person whom the petitioner

would be authorised to represent, had a genuine interest in, or showed the

necessary qualifications for, the vacancy. While the relevant provision of

Danish law prohibited discrimination of all persons of non-Danish origin in

job advertisements, it did not automatically follow that persons not directly and

personally affected by such discrimination could claim to be victims of a viola-

tion of any of the rights guaranteed in the Convention. Any other conclusion

would open the door for popular actions (actio popularis) against the relevant

legislation of states parties. The Committee concluded that the petitioner had

failed, for the purposes of Article 14(1), to substantiate its claim that it consti-

tuted or represented a group of individuals claiming to be the victim of a

violation by Denmark of the Convention. The Committee therefore decided

that the communication was inadmissible ratione personae under the

Convention.62

It can be concluded from these two cases that an NGOmay file petitionsbefore CERD if (a) it has itself been the victim of a violation of theConvention and has itself exhausted domestic remedies in thematter, or (b) if it can demonstrate that it is authorised to representpersons who are identifiable victims of violations of the Convention.

62 Ibid., paras. 6.4–7(a).


Interestingly, the Committee did not exclude the possibility for NGOs toact as petitioners on their own behalf. In the decision in case 28/2003, itused the expression ‘group of persons’, thereby avoiding ‘organisation’,while at the same time mentioning ‘members’, which can imply organ-isations as well as informal groups. The case nevertheless demonstratesthat some of the rights pronounced by CERD may protect not onlyindividuals and groups, but also organisations. On the other hand, itshould also be observed that NGOs (and other legal or physical persons)do not have the right to file actio popularis for the common good withoutany connection to concrete victims.

According to the twenty-eight case reports, the victimwas representedby an NGO acting as counsel in four cases.63 Many reports, however,simply state that the victim was ‘represented by counsel’. According toa formermember of the Committee, the victim is represented by anNGOin about half of the cases examined by the Committee, and in someothers it can be assumed that an NGO has probably referred the victimto the counsel or been involved in some other way.64

The Committee Against Torture

According to Article 22(1) of the Convention against Torture (CAT), theCommittee Against Torture is restricted to receiving communicationsfrom individuals. The Article reads:

A State Party to this Conventionmay at any time declare under this article that itrecognizes the competence of the Committee to receive and consider commu-nications from or on behalf of individuals subject to its jurisdiction who claim tobe victims of a violation by a State Party of the provisions of the Convention.65

Rule 107(b) of the Committee’s Rules of Procedure makes it clear thatthe Committee may receive communications on behalf of an allegedvictim when it appears that the victim is unable to submit the commu-nication personally.66

63 Communications No. 13/1998 (Koptova v. Slovakia, CERD/C/57/D/13/1998, 1 November2000); 18/2000 (F.A. v. Norway, CERD/C/58/D/18/2000, 17 April 2001); 11/1998 (Lacko v.Slovakia, CERD/C/59/D/11/1998, 1 August 2001); 25/2002 (Sadiv v. Denmark, CERD/C/62/D/25/2002, 16 April 2003). In case 25/2002, it was the organisation DRC (which has alsolodged petitions on its own behalf before the Committee) that acted as counsel. Thesame organisation acted on the national level (but seemingly not before theCommittee) in case no. 27/2002.

64 Interview with Peter Nobel, 29 September 2000. 65 Emphasis added.66 HRI/GEN/3, Compilation of Rules of Procedure Adopted by Human Rights Treaty Bodies, 6 June

2001, p. 169.


As of August 2004, there were 134 decisions taken by CAT on inad-missibility or on themerits posted in the database of the treaty bodies.67

In two of these cases, the communication had been submitted by anNGO.68 In another twelve cases, the victim was explicitly said to havebeen represented by an NGO as counsel.69 As for the Committee on theElimination of Racial Discrimination, it is likely that NGOs have beenactive as counsel or otherwise inmanymore cases than those where it isexplicitly stated in the decision of the Committee. For instance, mater-ial from Interights demonstrates that a communication (not amongthose mentioned above) was submitted by an NGO, although this isnot mentioned in the Committee’s decision.70

The Committee on the Elimination of DiscriminationAgainst Women

Under the Optional Protocol to the Convention on the Elimination ofDiscrimination against Women, which entered into force in December2000, communications may be submitted by or on behalf of individualsor groups of individuals claiming to be victims of a violation of a rightset forth in the Convention. Where a communication is submitted onbehalf of the alleged victim, his or her consent is required, unless

67 The database is accessible online on the website of the UN High Commissioner forHuman Rights at http://www.ohchr.org/english, as of 5 November 2004.

68 Communications No. 23/1995, The Spanish Refugee Aid Commission on behalf of X v. Spain(CAT/C/15/D/23/1995, 15 November 1995) and 113/1998 (Ristic v. Yugoslavia, CAT/C/26/D/113/1998, 11 May 2001). In the first case, the Committee accepted the explanation oftheNGO that it represented the victim, although itsmandate did not explicitlymentionapplication to the Committee (para. 7.2). In the second case, the author ofthe communication had deceased when the application was transmitted to theCommittee by the NGO on behalf of the victim (introduction and para. 1).

69 Communications No. 32/1995, N.D. v. France (CAT/C/15/D/32/1995, 20 November 1995);45/1996, D. v. France (CAT/C/19/D/45/1996, 10 November 1997); 62/1996, E.H. v. Hungary(CAT/C/22/D/62/1996, 11 June 1999); 65/1997, I.A.O. v. Sweden (CAT/C/20/D/65/1997, 6May1998); 127/1999, Z.T. v. Norway (CAT/C/23/D/127/1999, 18 April 2000); 143/1999, S.C. v.Denmark (CAT/C/24/D/143/1999, 3 September 2000); 146/1999, E.T.B. v. Denmark (CAT/C/28/D/146/1999, 24May 2002); 161/2000,Dzemajl et. al. v. Yugoslavia (CAT/C/29/D/161/2000,2 December 2002); 189/2002, Ltaief v. Tunisia (CAT/C/31/D/189/2002, 20 November 2003);188/2002,Abdelli v. Tunisia (CAT/C/31/D/188/2002, 20November 2003); 187/2002, Thabti v.Tunisia (CAT/C/31/D/187/2002, 20 November 2003; 199/2002, El Khalek Attia v. Sweden(CAT/C/31/D/199/2002, 24 November 2003).

70 According to Interights’ Annual Review 98–99 (pp. 32–33), communication No. 120/1998,Sadiq Shek Elmi v. Australia, was submitted by an Australian NGO on behalf of the victim.Interights also assisted in the case. The Committee’s decisionmakes nomention of theNGOs, see CAT/C/22/D/120/1998, 25 May 1999.


the author can justify acting without such consent.71 In cases where theauthor seeks to submit a communication without the consent of thevictim, she or he shall provide written reasons justifying such action.72

There is thus a clear possibility for NGOs to act before the Committee.Considering the wording of the Protocol, this possibility seems moreextensive than the corresponding possibility before the Human RightsCommittee (HRC) and the Committee Against Racial Discrimination.

Asof January2004, theCommitteeon theEliminationof Discriminationagainst Women had received three communications.73 No case reportshave, however, been publicised.

The 1503 Procedure

The so-called ‘1503 Procedure’, which applies to all states members ofthe United Nations, was established by ECOSOC in 1970 through theadoption of Resolution 1503 (XLVIII).74 The procedure does not dealwith individual cases as such but with situations that affect a largenumber of people: ‘situations which appear to reveal a consistentpattern of gross and reliably attested violations of human rights’.75 Theprocedure for dealing with the communications was revised in 2000.76

Under the procedure, individuals and groups of individuals can submitcommunications alleging human rights violations to the WorkingGroup on Communications of the Sub-Commission for the Promotionand Protection of Human Rights. If the Working Group identifies rea-sonable evidence of a consistent pattern of gross violations of humanrights, the matter will be referred for examination by the WorkingGroup on Situations. This Working Group can refer situations to theCommission on Human Rights, which takes a decision concerningeach particular situation brought to its attention. The procedure is

71 Optional Protocol to the Convention on the Elimination of Discrimination againstWomen (1999), Article 2. See also Rule 68 of the Committee’s Rules of Procedure, HRI/GEN/3, Compilation of Rules of Procedure Adopted by Human Rights Treaty Bodies,6 June 2001, p. 124.

72 CEDAW/C/ROP, Rules of Procedure of the Committee on the Elimination of Discrimination againstWomen, 26 January 2001, Rule 68(3).

73 Press ReleaseWOM/1432,Women’s Anti-Discrimination Committee Concludes Current Session,30 January 2004, A/56/38, Report of the Committee on the Elimination of Discrimination AgainstWomen, 20 April 2001.

74 Economic and Social Council Resolution 1503 (XLVIII), Procedure for Dealing withCommunications Relating to Violations of Human Rights and Fundamental Freedoms, 27May 1970.

75 Ibid., para. 1.76 E/RES/2000/3, Procedure for Dealing with Communications Concerning Human Rights.


confidential. The Chairman of the Commission on Human Rights may,however, announce the names of countries which have been underexamination.

Any individual, group or organisation with direct and reliable know-ledge of human rights violations may submit a communication underthe 1503 Procedure. It covers material from all types of sources, butNGOs are in practice the most important source of information.77

According to a UN Fact Sheet, NGOs submitting communications‘must be acting in good faith and in accordance with recognized prin-ciples of human rights’. The organisation should also have ‘reliabledirect evidence of the situation it is describing’.78 Amnesty Internationalsubmits detailed reports on country situations under the procedure;during 2003 it made four submissions.79

The ‘1503 Procedure’ can be useful for NGOs which want the UnitedNations to investigate the general human rights situation in a particularcountry. However, the confidentiality of the procedure makes it diffi-cult for NGOs to play an active role or to use the procedure for publicitypurposes. It also makes the estimation of NGO activity uncertain.

The ILO freedom of association procedures

The ILO has adopted more than 180 conventions covering a broad rangeof subjects within the area of labour law, among which are severalconventions establishing organisation rights for workers’ and employ-ers’ organisations.80 The organisation’s special procedures for super-vision (i.e. those regarding specific allegations) include two differentmechanisms to which organisations of workers and employers haveaccess. The Article 24 Procedure, under which national or internationalworkers’ or employers’ organisations may submit so-called representa-tions to the ILO has been described earlier in this book.81

The other procedure which provides standing for NGOs of the relevantcategories is the complaints mechanism handled by the Committee onFreedom of Association, which was established in 1951 as a tripartite

77 Nigel Rodley, ‘Human Rights NGOs: Rights and Obligations’, in Theo Van Boven et al.(eds.), The Legitimacy of the United Nations: Towards an Enhanced Legal Status of Non-StateActors, Netherlands Institute of Human Rights, SIM Special, 19, Utrecht, 1997, p. 55.

78 Fact Sheet No.7/Rev.1, Complaint Procedures.79 Cook, ‘Amnesty International at the United Nations’, p. 201 and Amnesty International

Report 2004 (section ‘AI’s Activities, International and Regional Organizations).80 See section 4.2. 81 Ibid.


body following a decision by the ILO Governing Body.82 The Committeeon Freedom of Association examines complaints containing allegationsof violations of the ILO conventions on freedom of association.83 Theconsent of the state concerned is not necessary for complaints to bereceivable, as the legal basis for the procedure is the ILO Constitutionand the Declaration of Philadelphia, according to which member statesare bound to respect the fundamental principles laid down in theConstitution by virtue of their membership of the organisation.84

Organisations of workers or employers, or governments, may lodgecomplaints either directly to the Committee on Freedom of Associationor through the United Nations. Allegations are receivable only if thecomplaint has been lodged by (a) a national organisation directly inter-ested in the matter, (b) an international organisation of workers oremployers having consultative status with the ILO, or (c) another inter-national organisation of workers or employers where the allegationsrelate to matters directly affecting their affiliated organisations.85

Organisations in general consultative status with the ILO – presentlyeight organisations of workers and employers – may thus lodge com-plaints without a connection to thematters which are the subject of theallegations.86 The fact that an organisation has not been officiallyrecognised or has been dissolved by the government does not make acomplaint incapable of being received when it is clear from the com-plaints that the organisation has at least a de facto existence.87

The responsibility of the Committee on Freedom of Association ismainly to consider whether cases are worthy of examination by theGoverning Body, and to make a recommendation in this respect. TheCommittee may also recommend the Governing Body to communicatethe Committee’s conclusions to the government concerned, drawing its

82 ILO Law on Freedom of Association: Standards and Procedures, Geneva: International LabourOffice, 1995, p. 128.

83 The ILO Conventions on freedom of association include the Convention No. 87 onFreedom of Association and Protection of the Right to Organise (1948), No. 98 on theRight to Organise and Collective Bargaining (1949), No. 11 (Right of Association, 1921),No. 135 (Workers’ Representatives Convention, 1971), No. 141 (Rural Workers’Organisations Convention, 1975), No. 151 (Labour Relations Convention) and No. 154(Collective Bargaining Convention, 1981).

84 Report of the Committee of Experts on the Application of Conventions andRecommendations, Freedom of Association and Collective Bargaining, International LabourConference, 81st Session, Geneva, 1994, para. 19.

85 ILO Law on Freedom of Association, p. 132. 86 See section 7.3.87 ILO Law on Freedom of Association, p. 132.


attention to discrepancies between national law and practice and theconventions and inviting the government to take appropriate measuresto remedy the situation. If the ILO conventions on freedom of associa-tion are ratified and legislative issues are raised, the Committee’s con-clusions receive follow-up from theCommittee of Experts, whichmakesregular supervision of the observance by member states of their obliga-tions under conventions and recommendations.88 Since its establish-ment, the Committee on Freedom of Association has examined over2,000 cases.89

The UNESCO procedure for individual communications

In 1978 the UNESCO Executive Board established a procedure for theexamination of communications concerning alleged violations ofhuman rights in its fields of competence – namely, education, science,culture and information.90 Communicationsmust in particular relate toviolations of human rights within UNESCO’s field of competence.Among these are, inter alia, the right to education, the right to informa-tion, including the freedom of opinion and expression, the right tofreedom of thought, conscience and religion and the right to freedomof assembly and association for the purposes of activities connectedwith education, science, culture and information. The procedure is, inother words, not tied to any particular human rights instrument,although the Universal Declaration of Human Rights is used as a stan-dard for describing UNESCO’s competence in relation to differentrights. It is also stated in the decision laying down the procedure that,in order to be admissible, ‘the communicationmust be compatible withthe principles of the Organization, the Charter of the United Nations,the Universal Declaration of HumanRights, the international covenantson human rights and other international instruments in the field ofhuman rights’.91

88 Ibid., pp. 128, 149.89 ILO Governing Body, GB.280/9, 324th Report of the Committee on Freedom of Association,

March 2001, para. 2. The Committee examines around 200 cases per year, seeProvisional Record, Ninety-Second Session, Geneva, 2004, p. 8. See also Lee Swepston,‘Human Rights Law and Freedom of Association: Development through ILOSupervision’, International Labour Review, 1937 (1998), No. 2, p. 176.

90 104 EX/Decision 3.3, Study of the Procedures which should be Followed in the Examination ofCases and Questions, Executive Board 104th Session, 24 April–9 June 1978, para. 14 (a iii).

91 Ibid., para. 14(a iv).


Communications may be submitted by individuals, groups of indivi-duals and NGOs. The author of a communication can be the victim of aviolation of the human rights protected or a person or organisationwithreliable knowledge of such violations.92 Communications should con-cern cases of individual and specific violations or situations of massive,systematic or flagrant violations of human rights.93 Persons whoUNESCO regards as particularly likely to suffer violations of the rightsrelevant to the organisations are teachers, students, researchers, artists,writers, journalists and others who by virtue of their position comewithin UNESCO’s fields of competence.94

Communications regarding alleged violations are examined by theCommittee on Conventions and Recommendations in an entirely con-fidential procedure.95 The confidentiality of the procedure is in linewith its general character of a political mechanism for negotiation,where the Committee tries to find a solution in a spirit of co-operationand understanding. It is explicitly recalled in the decision establishingthe procedure that ‘UNESCO should not play the role of an internationaljudicial body’.96 Because of its character, the procedure is not regardedas incompatible with the other complaints procedures within the UNsystem, but rather as a complementary mechanism. The Committeesees its sole role as being to establish dialogue with the governmentsconcerned in order to consider what might be done on behalf of allegedvictims for humanitarian reasons. Its aim is to promote rights within itsfield of competence by trying to reach a friendly solution throughseeking information and facilitating conciliation.97

After having concluded its examination, the Committee adopts areport with recommendations. This report is also confidential, and theauthor receives only a letter with a summary of the government’sposition and the Committee’s decision.98 If a communication warrantsfurther consideration, the Committee shall act ‘with a view to helping

92 Ibid., para 14 (a ii) and 159 EX/CR/2, Committee on Conventions and Recommendations,Information Document, 14 March 2000, p. 21.

93 104 EX/Decision 3.3, para. 10(b).94 159 EX/CR/2, Committee on Conventions and Recommendations, Information Document,

14 March 2000, p. 4.95 Ibid., para. 14(c). 96 Ibid., para. 7.97 159 EX/CR/2, Committee on Conventions and Recommendations, Information Document,

14 March 2000, p. 19.98 Ibid., p. 6, and 104 EX/Decision 3.3, para. 15.


to bring about a friendly solution designed to advance the promotion ofhuman rights falling within UNESCO’s field of competence’.99

Confidentiality is regarded as essential, and if the author of a com-munication does not respect this principle, the Committee may decideto strike the communication from its list or declare it inadmissible.100

This means that the weakness of the procedure cannot be compensatedby a complaining NGO through mass media pressure.

Almost all of UNESCO’s member states have recognised theCommittee’s competence to examine individual communications.101

From 1978, when the procedure for individual communications wasestablished, to 1998, the Committee on Conventions and Recommen-dations examined 482 communications. The communications camefrom individuals as well as NGOs, such as Amnesty International, theInternational Association of Democratic Lawyers, the InternationalHuman Rights Law Group and the Women’s International DemocraticFederation.102

The World Bank Inspection Panel

The World Bank Inspection Panel was created in 1993 in response toenvironmental and human rights campaigns as a forum for privatecitizens who believe that their rights or interests have been or couldbe directly harmed by a project financed by the Bank.103 The Panel wasestablished by the Executive Directors of the World Bank and theInternational Development Association (IDA).104 It consists of threemembers of different nationalities from Bank member countriesappointed by the Executive Directors.105

Affected people in the territory of the borrower may bring theirconcerns to the attention of the Panel by filing a request for inspection.Such requests may be brought only by affected parties who are not

99 104 EX/Decision 3.3, para. 14(k).100 159 EX/CR/2, Committee on Conventions and Recommendations, Information Document,

14 March 2000, p. 24.101 Ibid., p. 8.102 Symonides, ‘UNESCO and the Universal Declaration of Human Rights’, p. 97.103 According to Fox, ‘all parties’ agree that the Panel was created in direct response to

such campaigns. Jonathan A. Fox, ‘TheWorld Bank Inspection Panel: Lessons from theFirst Five Years’, 6 Global Governance (2000), p. 279.

104 The Panel was established by IBRD Resolution No. 93–10, The World Bank InspectionPanel, and the identical IDA Resolution No. 93–6, both adopted by the ExecutiveDirectors of the respective institutions on 22 September 1993.

105 Ibid., para. 2.


single individuals, but groups, communities, organisations, associa-tions, etc., or by the local representative of such parties. This meansthat NGOsmay bring requests before the Panel, and this has occurred inseveral cases. The affected party must demonstrate that its rights orinterests have been or are likely to be directly affected by an action oromission of the Bank as a result of a failure of the Bank to follow its ownoperational policies and procedures during the design, appraisal and/orimplementation of a bank-financed project. It is a condition that suchfailure has had, or threatens to have, a material adverse effect.106

The Panel’s method of functioning is laid out in Operating Proceduresdeveloped by the Panel members.107 The role of the Panel is to carry outindependent investigations. After the receipt of a request, the Panelsends it to the Bank Management, which has twenty-one working daysto respond to the allegations. The Panel then conducts a short assess-ment andmakes a recommendation to the Board of Executive Directorswhether or not the matters complained of should be investigated. If theBoard so decides, the Panel carries out an investigation and provides itsfindings and conclusions to the Board, which considers the actions(if any) to be taken by the Bank.

The procedure was reviewed and clarified by the Board in 1996 and in1999. During the 1996 review, NGOs proposed that the access to thePanel should be broadened to cover requests submitted by foreign NGOsand to cover local NGOs whose rights or interests had not been affectedby the project, or generally to claims submitted in the public interest.108

The Board however declined the proposal.109 Accordingly, it is still arequirement both that the requester be affected and that the affectedgroup of persons be in the territory of the borrower. NGOs may also actas a representative of the group or community concerned, but repre-sentatives shall in general be local. An NGO from another region orcountry may thus be chosen as representative only if appropriate

106 Ibid., para. 12.107 World Bank Inspection Panel, Operating Procedures, as adopted by the Panel on

19 August 1994.108 Ibrahim F. I. Shihata, The World Bank Inspection Panel: In Practice, 2nd edn., Oxford

University Press, 2000, p. 168. According to the 1993 Resolution establishing the Panel,the Board of Directors was to review the experience of the inspection function aftertwo years from the date of the appointment of the first members of the Panel. IBRDResolution No. 93–10, IDA Resolution No. 93–6, 22 September 1993, para. 27.

109 Shihata, The World Bank Inspection Panel, p. 168, and Review of the ResolutionEstablishing the Inspection Panel, Clarification of Certain Aspects of the Resolution,IBRD Resolution No. 96–204.


representation is not locally available.110 As of August 2004, the Panelhad registered twenty-nine requests for inspection. Twenty of thesewere filed by NGOs.111

In seven of the cases, the NGOs were acting on their own behalf oron behalf of themselves as well as on behalf of affected individuals.112

In the other cases, the NGOs acted as representatives of the affectedgroup. The Panel has, so far, recommended an investigation in abouthalf of all the cases received. Since the April 1999 clarifications of theRules, the Board has authorised all of the investigations recommendedby the Panel.113

All NGOs which acted as representative were local or based in thesame country as the affected group except for one case, where a US NGOfiled a request on behalf of people living in the project area in Tibet.114

A couple of examples of cases where the request was filed by an NGOcan illustrate the role of NGOs before the World Bank Inspection Panel.

The Jamuna Bridge Project was planned to connect the eastern and western

parts of Bangladesh through the construction, operation and maintenance of a

bridge over the Jamuna River.115 There are thousands of mid-channel islands,

110 IBRD Resolution No. 93–10, IDA Resolution No. 93–6, 22 September 1993, para. 12.111 The requests are Brazil/Rondonia Natural ResourcesManagement Project; Bangladesh/

Jamuna Bridge Project; Argentina–Paraguay/Yacyreta Hydroelectric Project; Brazil/Itaparica Resettlement and Irrigation Project; India/Ecodevelopment Project; Nigeria/Lagos Drainage and Sanitation Project; Brazil/Land Reform Poverty Alleviation Project;China/Western Poverty Reduction Project; Argentina/Special Structural AdjustmentLoan; Brazil/Land Reform Poverty Alleviation Project, 2nd request; Kenya/LakeVictoria Environmental Management Project; Ecuador/Mining Development andEnvironmental Control Technical Assistance Project; India/Coal Sector Environmentaland Social Mitigation Project and Coal Sector Rehabilitation Project; Uganda/ThirdPower Project and Fourth Power Project; Papua New Guinea/Governance PromotionAdjustment Loan; Cameroon/Petroleum Development and Pipeline Project andPetroleum Environment Capacity Enhancement (CAPECE) Project; Philippines/ManilaSecond Sewerage Project; Colombia/Cartagena Water Supply, Sewerage andEnvironmental Management Project; India/Mumbai Urban Transport Project; India/Mumbai Urban Transport Project – Gazi Nagar.

112 The requests in Brazil/RondoniaNatural ResourcesManagement Project; Nigeria/LagosDrainage and Sanitation Project; Uganda/Third Power Project and Fourth PowerProject; Philippines/Manila Second Sewerage Project; Colombia/Cartagena WaterSupply, Sewerage and Environmental Management Project; India/Mumbai UrbanTransport Project; and India/Mumbai Urban Transport Project – Gazi Nagar were filedby NGOs only or partly on their own behalf.

113 Inspection Panel, Annual Report, August 1, 2001 to June 30, 2002, p. 3.114 Request No. 16.115 TheWorld Bank Inspection Panel, Report and Recommendation, Bangladesh: Jamuna Bridge

Project (Credit 2569-BD), 26 November 1996.


known as chars, in the Jamuna river. Choura, or char people, live on or derive their

income from the chars. Some seventy-five charswith over 70,000 inhabitants are

said to be located in the project area. The request for inspection was filed by a

local NGO, the Jamuna Char Integrated Development Project (JCIDP) represent-

ing char people in the project area. The JCIDP requested an investigation of the

harmful effects of the project on the livelihood of choura on the char islands and

alleged violations relating to IDA policies. The Panel was not satisfied that the

policies and procedures on Resettlement and Environmental Assessment had

been fully complied with in relation to the chars and the choura in the Jamuna

River. The Panel concluded, however, that an investigation of the matters

alleged in the Request was not warranted, since the borrower had undertaken

corrective measures towards the affected people by the time the Panel took its

decision.116 The Panel therefore never decided on the question whether the

Bank’s operational policies had been complied with.

The Ecuador Mining Development and Environmental Control Technical

Assistance Project, financed by the World Bank (IBRD), was created with the

main objectives of attracting new private mining investment and arresting

mining-related environmental degradation.117 The request for inspection was

filed by an Ecuadorian NGO acting for and on behalf of persons living in the

project area, known as the Intag area, and four representatives of another NGO.

The requesters claimed that the public release of maps with mineral data

collected under the project would attract mining companies and producemulti-

fold negative impacts on their society and the local environment. The develop-

ment of mining activities in the area, for instance, would have a destructive

impact on protected areas and their buffer zones and prevent local communities

from continuing to work at their traditional farming, livestock and ecotourism

activities. They further argued that the project would violate specific World

Bank policies and procedures. More specifically, the Requesters alleged, inter

alia, that the management had failed to consult and take into account the views

of local communities and NGOs in preparing the Environmental Assessment.

The Bankmanagement was of the view that it had compliedwith all operational

polices and procedures applicable to the matters raised by the Request. With

regard to consultation, it replied that it had consulted with eleven NGOs during

the preparation, appraisal and implementation of the Project. For purposes of

determining the eligibility of the Request and Requesters, the Inspection Panel

carried out a field visit to the project area andmetwith representatives of a large

number of NGOs. The discussions confirmed that there was support for the

Request and that the other criteria for eligibility had been met. The Panel

116 See also Fox, ‘The World Bank Inspection Panel’, n. 43.117 The World Bank Inspection Panel, Report and Recommendation, Ecuador: Mining

Development and Environmental Control Technical Assistance Project (Loan No. 3566-EC),28 April 2000.


recommended an investigation, and its recommendation was approved by the

Board. In its Investigation Report, the Panel concluded that the management

had complied with certain procedures, while it had been in apparent violation

of certain other policies and procedures on Environmental Assessment, includ-

ing those concerning consultation during preparation. According to

Operational Directive 4.01, the views of affected groups and local NGOs should

be taken fully into account in project design and implementation, and in

particular in the preparation of Environmental Assessments. In one part of the

project area, meetings with NGOs had not commenced until five years after the

Environmental Assessment Report had been completed. The Panel also found it

worth noticing that the management did not characterise these as meetings ‘to

consult’ but rather as ‘meetings to inform’.118

Although the Inspection Panel provides an interesting example ofNGO influence on an important international institution, several ofthe parties involved in the procedure have been dissatisfied with theexperience. The Panel itself was concerned with some of the manage-ment’s practices, such as agreeing with borrowers before the Panel’ssubmittal of its recommendations to the Board. Affected parties havecomplained about lack of consultation and failure to inform themabout the outcome in their own language.119 Concerns raised by NGOshave included that the Panel’s mandate is too narrow, and that it hasbeen frustrated by both the management and the Board.120 One writer,evaluating the results of Panel inspections and other reforms of theWorld Bank, suggests that, on the one hand, the Bank appears to befunding fewer ‘obviously disastrous new infrastructure megaprojects’while, on the other, many projects continue to fall short of the Bank’sown policies.121 A general observation is that the number of requests forinspection has been relatively few. The twenty-nine requests received asof August 2004 should be seen in relation to the fact that the Bank hashundreds of projects underway each year.

Perhaps the most important aspect of the establishment of theWorld Bank Inspection Panel from the perspective of NGOs and affectedgroups in general is that their interests in being consulted regarding

118 The World Bank Inspection Panel, Report No. 21870, Investigation Report on EcuadorMining Development and Environmental Control Technical Assistance Project, 23 February2001, in particular paras. 92–107.

119 Shihata, The World Bank Inspection Panel, p. 259. 120 Ibid., p. 260.121 Fox, ‘The World Bank Inspection Panel’, n. 58. See also Chi Carmody, ‘Beyond the

Proposals: Public Participation in International Economic Law’, 15 American UniversityInternational Law Review (2000), p. 1321.


Bank projects have been recognised as legitimate. It should also beobserved that similar mechanisms have been created within theAsian Development Bank (ADB) and the Inter-American DevelopmentBank (IADB).

5.3 Regional bodies

The European Convention on Human Rights and its monitoring bodies

The procedure

Until a few years ago,NGOshad only a limited procedural capacitywithinthe monitoring system of the European Commission of Human Rights(the Commission). The ECHR could receive petitions from individuals,groups of individuals or NGOs which claimed to be the victim of aviolation of the rights of the Convention. This individual complaintsprocedure was facultative; complaints were declared admissible only ifthe respondent state had recognised the competence of the Commissionto receive such petitions. According to Article 44 of the Convention, onlythe contracting states and the Commission had the right to bring casesbefore the Court. Private applicants were not considered to be partiesbefore the Court if the Commission referred their case to it. Initially,individual petitioners could appear before the Court only for the sake ofrendering ‘assistance’ to the delegates of the Commission, and it was notuntil 1982 that the Rules were amended so as to require that the appli-cant be invited to be individually represented.122

The 9th Additional Protocol, which was adopted in 1990, gave Article44 of the Convention a new wording, entitling individuals and NGOswho had filed a case with the Commission to refer the case to the Court.This right was, however, conditional. First, the Commission had toadopt a report on the case. Second, according to Article 5(2) of theProtocol, a case referred to the Court by a person, an NGO or a groupof individuals should first be submitted to a screening panel of threejudges, including the judge elected in respect of the state against whichthe complaint had been submitted. If the case did not raise any seriousquestion affecting the interpretation or application of the Convention,and did not for any other reason warrant further consideration, thepanel should decide that the case would not be considered by the Court.

122 P. van Dijk and G. J. H. van Hoof, Theory and Practice of the European Convention on HumanRights, 3rd edn., The Hague: Kluwer Law International, 1998, pp. 228–235.


With the coming into force of the 11th Additional Protocol inNovember 1998, a new monitoring system became operational. Theformer system where petitions were tried in the Commission andCourt was replaced by the Single Court of Human Rights. The newArticle 34 on the right to bring cases before the Court reads:

The Court may receive applications from any person, non-governmental organ-isation or group of individuals claiming to be the victim of a violation by one ofthe High Contracting Parties of the rights set forth in the Convention or theprotocols thereto. The High Contracting Parties undertake not to hinder in anyway the effective exercise of this right.

In other words, NGOs, as well as individual applicants, now have locus

standi as parties before the ECHR.

The concept of ‘non-governmental organisation’ and the victimrequirement

The term ‘non-governmental organisation’, as used in the formerArticle 25 of the Convention and in Article 34 in the present wordingof the text, includes a wide range of private legal persons.123 The sameword is to be found in the former Commission’s Rules of Procedure andin the Rules of the new Court without any further explanation.124 TheCommission decided, however, during its first session that an NGOmust be established in a regular way according to the law of one ofthe state parties to the Convention. If the organisation has not been estab-lished legally, the application must be signed by all the persons belong-ing to the group.125 The Commission and the Court have examinedseveral cases brought by associations with no or questionable juridicalpersonality.

In the case of Freedom and Democracy Party (OZDEP) v. Turkey, the Turkish author-

ities applied to the Constitutional Court to have the party dissolved when

the application of the Democracy Party had already been filed with the

123 It should be observed that although the definition of ‘NGO’, which has been outlinedin section 1.3 for the purpose of the study excludes political parties, these entities willbe included in the discussion below, as some of the cases involving political partiesprovide information which is interesting in relation to all NGOs.

124 According to Rule 32(1) of the former Commission’s Rules of Procedure ‘persons,non-governmental organisations, or groups of individuals’ could present and conductapplications under Article 25 of the Convention, Rules of Procedure of the EuropeanCommission of Human Rights, as in force at 28 June 1993. See also, e.g., Rules 1, 36(1) and45(2) of the Rules of Court, 4 November 1998.

125 Van Dijk and van Hoof, Theory and Practice of the European Convention, p. 46.


Commission. Shortly afterwards, a meeting of the founding members of OZDEP

decided to dissolve the party voluntarily. Nevertheless, the proceedings before

the Commission and the Court were continued with OZDEP as applicant. The

government objected before the Court that OZDEP could not be regarded as a

victim of the dissolution as it had been dissolved voluntarily well before the

Constitutional Court had ordered its dissolution. The Court found that the

members of OZDEP had resolved to dissolve their party in the hope of avoiding

certain effects of dissolution by the Constitutional Court, in their case a ban on

holding similar office in any other political body. The decision had therefore not

been taken freely. Moreover, the Turkish law on the regulation of political

parties provided that if a decision to dissolve a political party had been taken

by the competent body of the party after an application for its dissolution had

been lodged by the authorities, this should not prevent the proceedings before

the Constitutional Court from continuing or deprive any dissolution order of its

legal effects. As domestic law provided that a voluntarily dissolved political

party remained in existence for the purposes of dissolution by the

Constitutional Court, the Government could not contend before the ECHR

that OZDEP was no longer in existence when the dissolution order was made.

The government’s preliminary objection was therefore dismissed. As to the

merits of the case, the Court found a violation of Article 11 of the Convention.

The judgement was issued in the name of the party.126

It should be observed that the Turkish government did not raise theobjection that OZDEP was no longer a party to the proceedings becauseit did not exist legally, but only that it could not be considered a victimbecause of the decision to dissolve the organisation voluntarily. In thecase of Stankov and United Macedonian Organisation Ilinden v. Bulgaria thequestion arose whether an organisation which had been refused regis-tration could be accepted as an applicant before the Commission.

The Government argued that where an NGO lacks legal standing under

domestic law and where it is not open to the Commission to examine the

conformity with the Convention of the decision which has led to such legal

situation, the NGO has no standing to submit a petition. The Commission

recalled that in earlier case-law concerning NGOs which had been refused

126 Freedom and Democracy Party (OZDEP) v. Turkey, 8 December 1999. The Court, however,ordered the compensation for non-pecuniary damage sustained by the founders andmembers of the applicant party to be paid to OZDEP’s representative for the purposesof the proceedings before the Court, para. 57. Judgements and decisions of theConvention monitoring bodies which are accessible online in the Council of EuropeHUDOC database (at http://cmiskp.echr.coe.int/tkp197/default.htm, as of 6 November2004) are referred to with title and date only. If the cases are not included in thedatabase, reference is made to a publication where they are included.


registration or had been dissolved and which had complained about these very

facts, the Commission had not questioned the applicants’ locus standi. It stated

that any other solution would to a substantial degree restrict the right of NGOs

to petition. The government’s objection was, however, not rejected only on that

ground. The Commission noted that there was nothing to suggest that a non-

registered association such as the applicant had no right under Bulgarian law to

function and to perform its activities. It again recalled earlier case-law, accord-

ing to which the refusal of registration of an association did not amount to an

interference with the association’s right to freedom of assembly if the associa-

tion was able to perform its activities without registration. It followed that if the

authorities sought to suppress the activities of such an association following the

refusal of registration there must be a possibility for it to submit a complaint

under Article 11 of the Convention. The government had in any event impliedly

accepted the applicant association’s locus standi before its own authorities. The

Commission concluded that the government’s objection should be rejected.127

In the case of Canea Catholic Church v. Greece, the application was treatedby the Commission and the Court as filed by the Church as such, in spiteof the fact that the Greek government denied that the church had legalpersonality.

The application was brought by a bishop belonging to the church. The

Commission found in its report that the applicant was acting only as the

representative of the Catholic Church of the Virgin Mary in Canea. Accordingly,

it considered that the application should be treated as having been submitted

by the church itself. The church claimed that refusals on the part of the Canea

Court of First Instance (CFI) and the Court of Cassation to recognise the church

as a legal person with capacity to bring or defend legal proceedings violated,

inter alia, Article 6 of the Convention. In short, it was argued that the applicant

church, like all other churches existing in Greece before the Civil Code entered

into force, had legal personality ‘sui generis’. The government argued that the

church had not ipso facto acquired legal personality because it had not complied

with relevant national legislation, which offered a sufficient number of possibi-

lities for organising its activities through the setting up of separate, independent

legal entities such as associations or religious foundations. The Court noted that

the legal personality of the Greek Catholic Church and of parish churches had

never before been called into questionby administrative authorities or courts. The

Court of Cassation’s ruling that the applicant church had no capacity to take legal

proceedings had imposed on it a real restriction preventing it then and for the

future from having any dispute relating to its property rights determined by the

127 Stankov and United Macedonian Organisation Ilinden v. Bulgaria, Admissibility decision,29 June 1998.


courts. The Court concluded that such a limitation impaired the very substance

of the church’s right to a court and therefore constituted a breach of Article 6(1)

of the Convention.128

Yet another case brought by an unregistered organisation was ApehUldozotteinek Szovetsege and Others v. Hungary, in which the Court cameto the conclusion that domestic proceedings regarding the applicantassociation’s registration came within the scope of Article 6 of theConvention, as associations obtained their legal existence underHungarian law only by virtue of their court registration.129

The Commission made it clear during its first session that NGOs wereprivate organisations, as opposed to public entities.130 This has also beenconfirmed in the Commission’s case-law. In the case of 16 Austrian

Communes and some of their Councillors v. Austria, the Commission rejectedthe application filed by the Communes at the admissibility stage.

The Commission examined the question whether the communes concerned

could, as submitted by the applicants, be considered as ‘non-governmental’

organisations within the meaning of this provision. It found that local govern-

ment organisations such as communes, which exercise public functions on

behalf of the State, were clearly ‘governmental organisations’. The Commission

next examined the question whether the communes concerned could never-

theless be regarded as ‘persons’ or ‘groups of individuals’ in the sense of the

wording of the Convention. It found that such a construction would not be

consistent with the Convention, and concluded that the communes concerned

could not bring an application under Article 25.131

In another case, the Court determined the status of a legal person as anon-governmental body independently of a government’s assertion ofan organisation’s status as a public law entity.

In the Holy Monasteries case of 1994, the Greek government argued that the

monasteries were not NGOs within the meaning of Article 25 of the Convention

because of their integration into the Greek Church, which was attributed with

legal personality under public law. The government argued further that the

church and its constituent parts played a direct and active role in public admin-

istration. The Court noted, like the Commission, that the monasteries did not

128 Canea Catholic Church v. Greece, 16 December 1997.129 Apeh Uldozotteinek Szovetsege and Others v. Hungary, 5 October 2000.130 Van Dijk and van Hoof, Theory and Practice of the European Convention, p. 46.131 16 Austrian Communes and some of their Councillors v. Austria, Admissibility decision,

31 May 1974; Ayuntamiento de X. v. Spain, Admissibility decision, 7 January 1991;Ayuntamiento de Mula v. Spain, Admissibility decision, 1 February 2001. See also van Dijkand van Hoof, Theory and Practice of the European Convention, p. 46.


exercise governmental powers and that their objectives were not such as to

enable them to be classed with governmental organisations established for

public administration purposes. From the classification as public law entities

it could be inferred only that the legislature wished to afford them legal protec-

tion against third parties. The monasteries were not under the supervision of

the state, of which they were completely independent. The Court concluded

that the applicant monasteries were therefore to be regarded as NGOs within

the meaning of Article 25 of the Convention.132

Among the private bodies which have applied under the formerArticle 25 are companies, trade unions, religious congregations, polit-ical parties, radio stations, newspapers and interest organisations.133

No distinction is made between profit- and non-profit making organ-isations. Commercial entities are thus often applicants in cases beforethe Court.134 Several cases have been instituted by newspapers.135 Asit is not necessary for the Court to decide whether an entity is forprofit or not, these judgements do not always reveal whether thenewspapers would fall into the category of NGOs as understood inthe present study. In the case of Open Door and Dublin Well Woman v.Ireland, the applicants were companies incorporated under Irish lawwith the non-profit-making aim of providing counselling and healthservices to pregnant women.136

The Convention does not allow for an actio popularis. An applicationwill not be accepted if the applicant has not suffered personally from aviolation of the convention, or if the complaint is brought about legisla-tion in abstracto. According to the practice of the monitoring bodies,however, it suffices for the so-called ‘victim requirement’ to be satisfiedthat the complainant runs the risk of being directly affected by theparticular matter which is brought.137

132 Holy Monasteries v. Greece, 9 December 1994. See also Finska forsamlingen i Stockholm andHautaniemi v. Sweden, Admissibility decision, 11 April 1996.

133 See below.134 A few examples of judgements are Tinnelly & Sons Ltd and Others andMcElduff and Others v.

the United Kingdom, 10 July 1998; Immobiliare Saffi v. Italy, 28 July 1999; Agoudimos andCefallonian Sky Shipping Co. v. Greece, 28 June 2001.

135 The Sunday Times v. the United Kingdom, 26 April 1979; The Sunday Times v. the UnitedKingdom, 31 July 1987; Observer & Guardian v. the United Kingdom, 27 January 1988; BladetTromsø and Stensaas v. Norway, 25 May 1999; Ozgur Gundem v. Turkey, 16 March 2000;Bergens Tidende and Others v. Norway, 2 May 2000.

136 Open Door and Dublin Well Woman v. Ireland, 29 October 1992.137 Campbell and Cosans v. the United Kingdom, 25 February 1982; Marckx v. Belgium, 13 June

1979. See also van Dijk and van Hoof, Theory and Practice of the European Convention,pp. 48–54.


The victim requirement is, naturally, equally valid for NGOs.Accordingly, an NGO can claim to be a victim only in the case of aviolation against the organisation itself, which means that the possibil-ities for NGOs to institute cases in order to develop the Court’s case-laware limited.

The case of Bruggemann and Sheuten v. the Federal Republic of Germany concerned a

criminal law on the termination of pregnancy. An application was brought

jointly by an NGO – the Weltschutzbund – and by three of its members, two

women and one man. The complainants asserted that the legislation interfered

with the right to respect for their private life as guaranteed by Article 8 of the

Convention. The Commission declared the application inadmissible insofar as it

had been brought by the organisation and by the man.138

The case of Purcell and Others v. Ireland concerned alleged restrictions on the

applicants’ freedom of expression resulting from a ministerial order stating that

broadcasts related to certain organisations were not allowed. The complaint had

been filed by several individuals as well as two trade unions. The Commission

stated that in order to satisfy the conditionsof Article 25, anapplicantmust be able

to demonstrate that he or she had been personally affected by the alleged breach

of the Convention. Themeasure complained of in the case did not affect the rights

of the applicant trade unions themselves, and the fact alone that the organisations

considered themselves as guardians of the collective interests of their members

did not suffice to make them victims within the meaning of Article 25. The

application was declared inadmissible ratione personae insofar as it had been

brought by the two trade unions.139

In X. Union v. France, the complaint had been filed by a professional union of

teachers.140 The union was an NGO which possessed legal personality under

French law and which was entitled to take legal proceedings to defend the

interests of the profession. In its application, the union challenged the obliga-

tion imposed upon secondary school teachers to reside in the town in which

they worked. The Commission pointed out that the union fell into the category

of applicants mentioned in Article 25, but that it did not itself claim to be the

victim of a violation. The complaint was therefore rejected as incompatible

ratione personae with the Convention.141

138 Theman had filed his application as the chairman of the organisation. It can thereforenot be excluded that he would have been recognised as a victim had he filed thecomplaint in his capacity as a husband or a partner. Bruggemann and Sheuten v. theFederal Republic of Germany, 10 D&R (1978) p. 101.

139 Purcell and Others v. Ireland, Admissibility decision, 16 April 1991.140 X. Union v. France, 32 D&R (1983), p. 261.141 See also National Federation of Self-Employed v. the United Kingdom, 15 D&R (1979), p. 198.


A related case was X. and Church of Scientology v. Sweden. The question arose

whether the church itself was capable of possessing and exercising the right

to freedom of religion contained in Article 9(1) of the Convention. The

Commission found that the church did in fact possess this capability in its

own capacity as a representative of its members.142

The case of Modinos v. Cyprus had similarities to an action brought for the

common good, even though the applicant was an individual victim.143 The

applicant was the president of the Liberation Movement of Homosexuals in

Cyprus. He complained that the prohibition on male homosexual activity con-

stituted a continuing interference with his right to respect for private life in

breach of Article 8 of the Convention. It might well have been the initiative of

the organisation to file the complaint in order to influence the application of

Article 8 in Cyprus. In the same case, the International Lesbian and Gay

Association sought leave to submit written comments, but the President of the

Court decided not to grant such leave.144

NGOs as parties before the Commission and the Court

From its establishment in July 1954 until 31 December 1997, theCommission received over 39,000 individual applications, of whichmore than 4,000 individual applications were declared admissible.145

Since the Council of Europe does not provide any official statistics onthe number of applications made by NGOs, and because of the vastnumber of individual applications, I have limited my investigation toNGO activity before the Court, with a few exceptions.

The ECHR delivered 1,009 judgements from 1959 until 1 November1998 (when the Single Court system became operational).146 The newCourt delivered 3,307 judgements from 1999 until 2003.147 All but three

142 X. and Church of Scientology v. Sweden, 16 D&R (1979), p. 68. See also section 4.2. As regardsthe application of the victim requirement to individual members of an organisation,see Gorraiz Lizarraga and Others v. Spain, 27 April 2004. In this case, the individualapplicants were not parties to the domestic proceedings but belonged to the applicantassociation which brought those proceedings in order to defend their interests.The Court accepted the victim status of the applicants, having regard in particular tothe fact that the applicant association had been set up for the specific purpose ofdefending its members’ interests before the courts and that those members weredirectly affected by the issue at stake.

143 Modinos v. Cyprus, 22 April 1993. 144 Ibid., para. 4.145 Information obtained in 5 May 1999 at the Council of Europe Human Rights website.

The site has now been changed.146 Council of Europe, European Court of Human Rights, Survey: Forty Years of Activity

1959–1998, p. 25.147 European Court of Human Rights, Survey of Activities, 1999, 2000, 2001, 2002 and 2003.


of the cases adjudged upon originated in an application from an indivi-dual or a private entity against a respondent state.148 The number ofjudgements on themerits which originated in an application filed by anNGO can be estimated to (at least) twenty-nine, including those involv-ing political parties.149

Sixteen cases originated in applications from different kinds of NGOs: Plattform‘Arzte fur das Leben’ v. Austria, 21 June 1988; Open Door & Dublin Well Woman v.Ireland, 29 October 1992; Informationsverein Lentia & Others v. Austria, 24 November1993; Otto-Preminger Institut v. Austria, 20 September 1994; Vereinigung demokra-tischer Soldaten Osterreichs & Gubi v. Austria, 19 December 1994; Vereniging WeekbladBluf! v. The Netherlands, 9 February 1995; Procola v. Luxembourg, 28 September1995; Radio ABC v. Austria, 20 October 1997; Clube de Futebol Uniao de Coimbrav. Portugal, 30 July 1998; Apeh Uldozotteinek Szovetsege and Others v. Hungary,5 October 2000; Stankov and the United Macedonian Organisation Ilinden v. Bulgaria,2 October 2001; Verein Gegen Tierfabriken v. Switzerland, 28 June 2001; EkinAssociation v. France, 17 July 2001; Unabhangige Initiative Informationsvielfaltv. Austria, 26 February 2002;Wynen and Centre hospitalier interregional Edith-Cavell v.Belgium, 5 November 2002; Informationsverein Lentia v. Austria, 28 November 2002.

Three cases originated in applications filed by trade unions: National Union ofBelgian Police v. Belgium, 27 October 1975; Swedish Engine Drivers’ Union v. Sweden,6 February 1976; Wilson, National Union of Journalists and Others v. the UnitedKingdom, 2 July 2002.

Five cases originated in applications from political parties: United CommunistParty of Turkey and Others v. Turkey, 30 January 1998; Socialist Party and Others v.Turkey, 25 May 1998; Freedom and Democracy Party (OZDEP) v. Turkey, 8 December1999; Refah Partisi (Prosperity Party) and Others v. Turkey, 31 July 2001; Yazar andOthers v. Turkey, 9 April 2002.

Six cases originated in applications from religious congregations or associa-tions: Holy Monasteries v. Greece, 9 December 1994 and 1 September 1997; CaneaCatholic Church v. Greece, 16 December 1997; Cha’are Shalom ve Tsedek v. France,27 June 2000; Institute of French Priests and Others v. Turkey, 14 December 2000;Grande Oriente d’Italia di Palazzo Giustiniani v. Italy, 2 August 2001; MetropolitanChurch of Bessarabia and Others v. Moldova, 13 December 2001.

It is obvious that the cases instituted by organisations are relatively few.During the periodwhen non-state actors lacked standing before the Court

148 The interstate cases were Ireland v. the United Kingdom, 16 December 1971; Denmark v.Turkey, 5 April 2000 (friendly settlement); Cyprus v. Turkey, 10 May 2001.

149 The cases have primarily been identified through searches in the HUDOC database.The list of cases below includes only those where the application has been filed by anNGO, alone or together with other (physical or juridical) persons. Cases related to NGOactivity (e.g. cases brought by individual members of an NGO, but not on behalf of theorganisation) have not been included.


it was natural that many cases brought by NGOs never reached the Court.With the present Single Court system in operation, the data will be morerepresentative. This is also demonstrated by the fact that so many of thecases brought by NGOs have been adjudged during recent years.

Issues raised in cases brought by NGOs

Because of the victim requirement, cases instituted by NGOs concernalleged violations of the complaining organisation’s rights under theConvention. Most cases concern alleged violations of the right to free-domof association and assembly and the right to freedomof expression.In spite of the victim requirement, the cases often have general politicalimplications.

In addition to the cases concerning the right to freedom of ass-ociation which have been described earlier, a few more can bementioned.

The case of United Communist Party of Turkey and Others v. Turkey concerned a

political party which was dissolved by the Turkish Constitutional Court. The

applicants – the party itself together with two Turkish nationals – claimed that

the decision was contrary to the right to freedom of association as protected by

Article 11. The Court found that Article 11 also had to be considered in light of

Article 10, as the party’s activities formed part of a collective exercise of freedom

of expression. It stressed that political parties had an essential role in ensuring

pluralism and the proper functioning of democracy and that there could be no

doubt that political parties came within the scope of Article 11. The Court

concluded that Article 11 had been violated.150

In the case of Socialist Party and Others v. Turkey, the party had been dissolved by the

Constitutional Court and claimed, inter alia, that the decision constituted a

breach of Article 11. The Court found a violation of Article 11, referring to its

argument in the case of United Communist Party of Turkey and Others v. Turkey.151

The three cases brought by trade unions, National Union of Belgian Police v.Belgium, Swedish Engine Drivers’ Union v. Sweden andWilson, National Union of

Journalists and Others v. the United Kingdom likewise concerned the right to

150 United Communist Party of Turkey and Others v. Turkey, 30 January 1998.151 Socialist Party and Others v. Turkey, 25 May 1998. See also Refah Partisi (Prosperity Party) and

Others v. Turkey, 31 July 2001 and Yazar, Karatas, Aksoy and the People’s Labour Party (HEP) v.Turkey, 9 April 2002, which both dealt with questions about the right to freedom ofassociation and political parties.


freedom of association, as did the case of Grande Oriente d’Italia di PalazzoGiustiniani v. Italy.152

The right to freedom of assembly has also been brought up by NGOsbefore the Court.

The case of Plattform ‘Arzte fur das Leben’ v. Austria originated in an application

brought by an association of doctors campaigning against abortion. In 1980 and

1982 the organisation held two demonstrationswhichwere disrupted by counter-

demonstrators despite the presence of police. The organisation complained to

the Commission that it had not had sufficient police protection during the

demonstrations and submitted that there had been breaches of, inter alia,

Articles 11 and Article 13. The complaint under Article 13 was declared admis-

sible, and the Court examined the right to freedom of peaceful assembly in

connection with Article 13. It stated that participants in a demonstration should

not have to fear that they would be subjected to physical violence by their

opponents, as such a fear would be liable to deter associations or other groups

supporting common ideas or interests fromopenly expressing their opinions on

highly controversial issues affecting the community. The Court did, however,

not find a violation of the Convention.153

In the above-mentioned case of Stankov and the United Macedonian Organisation

Ilinden v. Bulgaria, the applicants alleged a violation of Article 11 of the

Convention in respect of the authorities’ refusal to allow the holding of their

commemorative meetings. The organisation applied for, but was refused, regis-

tration by the Bulgarian courts, which found that the association’s aims were

directed against the unity of the nation, that it advocated national and ethnic

hatred and that it was dangerous for the territorial integrity of Bulgaria. The

applicant association also applied on several occasions for authorisation to

hold public meetings. Each application was refused as the applicant association

was not duly registered by the courts. The Court considered that, while past

findings of national courts which had screened an association were relevant in

the consideration of the dangers that its gatherings might pose, an automatic

reliance on the fact that an organisation had been considered anti-constitutional

and been refused registration could not suffice to justify a practice of systematic

bans on the holding of peaceful assemblies. As there had been no real fore-

seeable risk of violent action or of incitement to violence or any other form

of rejection of democratic principles, the authorities’ prevention of the disse-

mination of the applicants’ views at demonstrations was not justified under

152 National Union of Belgian Police v. Belgium, 27 October 1975; Swedish Engine Drivers’ Union v.Sweden, 6 February 1976;Wilson, National Union of Journalists and Others v. the UnitedKingdom, 2 July 2002; Grande Oriente d’Italia di Palazzo Giustiniani v. Italy, 2 August 2001.Regarding the latter case, see also section 4.2 on the right to freedom of association.

153 Plattform ‘Arzte fur das Leben’ v. Austria, 21 June 1988.


Article 11(2). The Court concluded that the authorities had overstepped their

margin of appreciation and that the measures banning the applicants from

holding commemorative meetings were not necessary in a democratic society

within the meaning of Article 11 of the Convention, which had thus been

violated.154

Many of the cases brought by NGOs before the Court actualised the rightto freedom of expression. These cases are in their character rathersimilar to cases instituted for more general political reasons, as theyinvolve the organisations’ right freely to express the ideas they havebeen formed to promote. Five of the cases concerned TV, radio orfilm.155 Four cases had to do with printed material.156 In the caseof Open Door and Dublin Well Woman v. Ireland the applicants were not-for-profit companies incorporated under Irish law with the aim ofproviding counselling and health services to pregnant women.157

The three cases which raised the right to fair trial have been describedabove.158

The European Social Charter collective complaints procedure

The European Social Charter underwent a process of revitalisation dur-ing the 1990s.159 In 1991, the Committee on the European SocialCharter (also known as the Revitalisation Committee) was appointedand given the task to draft proposals in order to remedy some of theCharter’s weaknesses. In 1994, the Revised Social Charter was adopted,bringing together all the rights guaranteed in the Charter and the 1988Additional Protocol, as well as introducing a number of new rights.160

The Revised Charter entered into force in July 1999.One of the problems which had been identified by the Revitalisation

Committee was the absence of actual participation of the social partners

154 Stankov and the United Macedonian Organisation Ilinden v. Bulgaria, 10 February 2001.155 Informationsverein Lentia & Others v. Austria, 24 November 1993; Otto-Preminger Institut v.

Austria, 20 September 1994; Radio ABC v. Austria, 20 October 1997; Vgt Verein gegenTierfabriken v. Switzerland, 28 June 2001; Informationsverein Lentia v. Austria, 28 November2002 (friendly settlement). See alsoGroppera Radio AG and Others v. Switzerland, 23March1990, in which case the radio station was a limited company incorporated underSwiss law.

156 Vereinigung demokratischer Soldaten Osterreichs and Gubi v. Austria, 19 December 1994;Vereniging Weekblad Bluf ! v. the Netherlands, 9 February 1995; Ekin Association v. France,17 July 2001; Unabhangige Initiative Informationsvielfalt v. Austria, 26 February 2002.

157 Open Door and Dublin Well Woman v. Ireland, 29 October 1992.158 See also Wynen and Centre hospitalier interregional Edith-Cavell v. Belgium, 5 November

2002, and Ekin Association v. France, 17 July 2001.159 ETS No. 35. 160 ETS No. 163.


in the supervisory procedure.161 The Committee’s work led to the adop-tion of two additional protocols, including the 1995 Additional Protocolto the European Social Charter Providing for a System of CollectiveComplaints, which entered into force in July 1998.162 According to theExplanatory Report to the Protocol, the new mechanism was:

designed to increase the efficiency of supervisory machinery based solely onthe submission of governmental reports. In particular, this system shouldincrease participation by management and labour and non-governmentalorganisations . . . The way in which the machinery as a whole functions can onlybe enhanced by the greater interest that these bodies may be expected to show inthe Charter . . . The system of collective complaints is to be seen as a comple-ment to the examination of governmental reports, which naturally constitutesthe basic mechanism for the supervision of the application of the Charter.163

The collective complaints system is optional and applies to states par-ties to the Protocol. However, states that are parties to the RevisedCharter may also make a declaration under Article D(2) of the RevisedCharter that they accept the supervision under the collective com-plaints system. As of August 2004, eleven states had ratified theProtocol and an additional two states had made a declaration underArticle D(2) of the Revised Charter.

As a collective complaints system, the procedure is accessible only toorganisations, not to individuals or states. Individual situationsmay notbe submitted, but can be described as an illustration of a state’s failureto comply with the Charter.164 Complaintsmay relate to the obligationsundertaken by a party in respect of any of the rights in the Charter,including those concerning full employment policy in Article 1(1).165

When a collective complaint has been submitted, it is examined by theCommittee of Independent Experts (also known as the EuropeanCommittee of Social Rights) which must first decide on the questionof admissibility. If the Committee decides that the complaint is admis-sible, it collects information from the complainant, from the state

161 Nathalie Prouvez, ‘The European Social Charter, an Instrument for the Protection ofHuman Rights in the 21st Century?’, International Commission of Jurists, The Review,No. 58–59, Geneva, 1997, p. 31.

162 ETS No. 158.163 Additional Protocol to the European Social Charter Providing for a Systemof Collective

Complaints, Explanatory Report, para. 2.164 Ibid., para. 31, Prouvez, ‘The European Social Charter’, p. 39.165 Explanatory Report, para. 31, Donna Gomien, David Harris and Leo Zwaak, Law and

Practice of the European Convention on Human Rights and the European Social Charter,Strasbourg: Council of Europe Publishing, 1996, p. 426.


concerned, from the other state parties to the Charter and from bothsides of industry. The Committee may also organise a hearing with therepresentatives of the parties (Article 7). When the case has been exam-ined, the Committee draws up a report containing its conclusions as towhether the state concerned has ensured the satisfactory application ofthe provision of the Charter referred to in the complaint. The report istransmitted to the Committee of Ministers, to the organisation thatlodged the complaint, to the contracting parties to the Charter and tothe Parliamentary Assembly. The report is made public (Article 8).

On the basis of the report, the Committee of Ministers shall adopt aresolution by a majority of those voting, or – if the Committee finds thatthe Charter has not been applied in a satisfactorymanner – it shall adopt arecommendation addressed to the Contracting Party concerned by amajority of two-thirds of those voting (Article 9). The state against whichthe complaint is brought is authorised to sit in theCommittee ofMinistersand to vote, a fact that has been criticised by NGOs. The general involve-ment of theCommittee ofMinisters, which is of course a political body, inthe collective complaints procedure process has also been criticised.166

The Committee of Ministers may not reverse the legal assessment madeby the Committee of Independent Experts, but may base its decision onconsiderations of social and economic policy.167 The recommendationsissued by the Committee of Ministers are not legally binding.168

The categories of organisations which may submit complaints are setout in Article 1 of the protocol, which reads:

The Contracting Parties to this Protocol recognise the right of the following organ-isations to submit complaints alleging unsatisfactory application of the Charter:

(a) international organisations of employers and trade unions referred toin paragraph 2 of Article 27 of the Charter;

(b) other international non-governmental organisations which haveconsultative status with the Council of Europe and have been put on alist established for this purpose by the Governmental Committee;

(c) representative national organisations of employers and trade unionswithin the jurisdiction of the Contracting Party against which theyhave lodged a complaint.

166 Prouvez, ‘The European Social Charter’, pp. 40–41. See also Gomien, Harris and Zwaak,Law and Practice, p. 429.

167 Explanatory Report, para. 46.168 Gomien, Harris and Zwaak, Law and Practice, p. 428; Prouvez, ‘The European Social

Charter’, p. 40.


Para. 1(a) refers to employers’ organisations and trade unions whichhave been invited to take part in the work of the sub-committee of theGovernmental Social Committee in accordance with Article 27(2) of theCharter.169 According to para. 1(b), international NGOs (INGOs) can filecomplaints provided that they have been included in a special listestablished by the Governmental Committee. The Explanatory Reportto the Additional Protocol specifies which circumstances should beconsidered by the Governmental Committee in the drawing up of thislist, namely:

1. that the INGO holds consultative status with the Council of Europe andis particularly competent in any of thematters governed by the Charter,

2. that its application is supported by detailed documentation showingthat the organisation has access to authoritative sources of informationand is able to carry out the necessary verifications, to obtainappropriate legal opinions etc. in order to draw up complaint filesthat meet basic requirements of reliability, and

3. that the application is accompanied by an opinion of the Secretary-General reflecting a sufficient degree of interest and participationshown by the INGO in its other dealings with the Council of Europe.170

An application by the Governmental Committee is considered acceptedunless it is rejected by a simple majority of the votes cast. Inclusion onthe list is valid for a period of four years.171 All decisions on inclusionor exclusion should be published and the reasons for the decisionpresented.172 As of August 2004, fifty-seven international NGOs withconsultative status had been included in the special list in accordancewith Article 1(b).173

The third category of organisationsmentioned in Article 1(c) is ‘repre-sentative national organisations of employers and trade unions withinthe jurisdiction of the Contracting Party against which they have lodgeda complaint’. The criterion of representativity was introduced in view ofthe large number of trade unions in some states. It was left to theCommittee of Experts to judge whether the applying organisations

169 The sub-committee examines the reports of the Contracting States and the conclusionsof the Committee of Experts.

170 Additional Protocol to the European Social Charter Providing for a Systemof CollectiveComplaints, Explanatory Report, para. 20.

171 Ibid. 172 Prouvez, ‘The European Social Charter’, p. 38.173 The list is publicised at the Council of Europe Social Charter website, accessible online

at http://www.coe.int/T/E/Human_Rights/Esc/5_Collective_complaints.


meet this requirement.174 The Committee has now discussed the issue ofrepresentativity in a number of cases. The first case dealing with acomplaint from a national trade union was Syndicat National des Professionsdu Tourisme v. France. In its decision on admissibility, the Committeestressed that ‘the representativity of national trade unions is an auto-nomous concept, beyond the ambit of national considerations, as well[as] the domestic collective labour relations context’.175 After ‘an overallassessment of the documents in the file’, and noting that the representa-tive character of the complaining trade union had not been contested bythe government, the Committee considered that the organisation wasrepresentative in the meaning of Article 1(c) of the Protocol.176 In a latercase, the French government challenged the representativity of thecomplaining trade union with reference to a judgement from anAdministrative Court of Appeal, according to which the trade union didnot fulfil the conditions of representativity as laid down by French law.The Committee again referred to the autonomy of the concept, whichwas ‘not necessarily identical to the national notion of representa-tivity’.177 It noted that it appeared from the documents in the file thatthe union exercised activities in defence of the material and moral inter-ests of personnel in the education sector, of which it represented aconsiderable number, and this in total independence from the employ-ing authorities. The Committee thus concluded that the union was repre-sentative for the purposes of the collective complaints procedure.178

All states which have accepted supervision under the collective com-plaints system recognise the right of an organisation falling into one ofthe three categories described in Article 1 to bring a complaint. Inaddition, each contracting state may, in a declaration to the Secretary-General of the Council of Europe, authorise national NGOs to lodge

174 Additional Protocol to the European Social Charter Providing for a Systemof CollectiveComplaints, Explanatory Report, paras. 22–23.

175 Complaint No. 6/1999, Syndicat National des Professions du Tourisme v. France, Decisionon admissibility, para. 6.

176 Ibid., paras. 7–8.177 Complaint No. 23/2003, Syndicat occitan d’education v. France, Decision on admissibility,

para. 4.178 Ibid., para. 5. See also the decisions on admissibility in complaints Nos. 9/2000,

Confederation Francaise de l’Encadrement – CGC v. France; 10/2000, Tehy r.y. and STTK r.y. v.Finland; 12/2002, Confederation of Swedish Enterprise v. Sweden; and Robin R. Churchill andUrfan Khaliq, ‘The Collective Complaints System of the European Social Charter: AnEffective Mechanism for Ensuring Compliance with Economic and Social Rights?’,15 EJIL (2004), pp. 425–426.


complaints against it in accordance with Article 2 of the Protocol. Thedeclaration may be made for a specific period. On the other hand,declarations may not be restricted to specific national NGOs or toparticular provisions of the Charter.179

Article 2 requires that national NGOs should be representative andhave ‘particular competence in the matters governed by the Charter’.These are the same requirements that are laid down for internationalNGOs and national organisations of employers and trade unions.According to the Explanatory Report, the Committee of IndependentExperts will judge whether these criteria are met when examiningwhether the complaint is admissible in the light of information sub-mitted by both parties.180 So far, only Finland has made a declarationthat it accepts complaints from national NGOs, and in the absence ofdecisions from the Committee it is uncertain what the requirements ofrepresentativity and ‘particular competence in thematters governed bythe Charter’ will mean in practice. As is observed by Churchill andKhaliq, the latter criterion may not be so difficult to assess, while theformer is more complicated.181 In particular, it may be complicated tomeasure the representativity of NGOs that promote general interestsrather than the interests of a certain group, since it is unclear of whichgroup such NGOs should be representative.

In general, there is no victim requirement under the collective com-plaints procedure, and the complaining organisations need not haveany connection to the alleged violation. Article 1makes it clear that it issufficient that the complaint concerns alleged ‘unsatisfactory applica-tion of the Charter’. However, organisations may submit complaintsonly in respect of those matters regarding which they have been recog-nised as having particular competence (Article 3). This question has alsobeen left to the Committee to deal with in its practice. The competenceof the complaining NGO has been challenged in a couple of cases. Incomplaint No. 17, theWorld Organisation against Torture (OMCT) statedthat Greek law had not effectively prohibited corporal punishmentof children, in breach of Article 17 of the Charter. The governmentalleged that OMCT was ‘not particularly qualified in the field of degrad-ing treatment of children’.182 However, the Committee simply noted

179 Explanatory Report, para. 28. 180 Ibid., para. 26.181 Churchill and Khaliq, ‘The Collective Complaints System’, p. 426.182 Complaint No. 17/2003,World Organisation Against Torture (OMCT) v. Greece, Decision on

admissibility, para. 2.


that ‘the OMCT is a non-governmental organization whose aim is tocontribute to the struggle against torture . . . regardless of the age ofthe persons against whom such treatments are directed’ and consid-ered that it was particularly qualified in the meaning of Article 3.183

The Greek government also contested the competence of the Quakers(QCEA) in complaint No. 8/2000, which related to Article 1(2) on pro-hibition of forced labour.184 The complainant alleged that the applica-tion in practice of the act authorising alternative forms of militaryservice for conscientious objectors did not respect the prohibition offorced labour. The government stated that it was not clear from thecomplaint that the QCEA engaged in any activity that made it particu-larly qualified in the field of the protection of the right to work.Nevertheless, the Committee found that the aim of the QCEA was tobring to the attention of the European institutions the concerns of themembers of this society, which relate to peace, human rights andeconomic justice, and therefore considered that the QCEA had intro-duced a complaint in a field in which it had particular competence.185

It thus seems that the complainants do not need to demonstrate a veryhigh degree of specialisation in order to meet the requirement ofcompetence under Article 3.186

As of August 2004, twenty-seven complaints had been registered.187

Twelve of these were lodged by INGOs.188 All the others had been filedby (national and international) organisations of workers or employers.Only Finland has accepted communications from national NGOs (thatare not organisations of workers or employers), but the only commu-nication regarding Finland was lodged by a trade union. Nine com-plaints led to the adoption of a resolution or recommendation by theCommittee of Ministers.189

183 Ibid., para. 6.184 Complaint No. 8/2000, Quaker Council for European Affairs (QCEA) v. Greece, Decision on

admissibility, para. 4.185 Ibid., paras. 8–9.186 See also Churchill and Khaliq, ‘The Collective Complaints System’, pp. 427–428.187 The list of complaints is published at the website of the Council of Europe, accessible

online at www.coe.int/T/E/Human_Rights/Esc/5_Collective_complaints/List_of_collective_complaints.

188 Nos. 1, 7, 8, 13, 14, 15, 17–21, 27. Several communications have been lodged by thesame NGOs. For instance, the OMTC has filed five communications and the EuropeanRoma Rights Center has lodged two.

189 RecChS(2001)1 on Collective complaint No. 6/1999, Syndicat National des Professions duTourisme v. France, ResChS(2001)2 onNo. 2/1999; European Federation of Employees in PublicServices v. France, ResChS(2001)3 on No. 4/1999; European Federation of Employees in Public


It is doubtful what effect the collective complaints procedure willhave on state parties’ compliance with the Charter.190 It is neverthelessinteresting that the participation by and interest of organisations ofworkers and employers, as well as of other NGOs, in the Chartermachinery as a whole was seen as an important impetus for creatingthe collective complaints mechanism.

The European Court of Justice

The European Court of Justice (ECJ) is the judicial organ of all threeEuropean Communities. The Court has jurisdiction to hear cases todetermine whether a member state has fulfilled its obligations underCommunity law, cases on annulment of Community legislation, on thelegality of a failure to act by a Community institution and on action fordamages, based on non-contractual liability of the Community fordamage caused by its institutions or servants in the performance oftheir duties. The ECJ may also hear appeals on points of law againstjudgements given by the CFI, and has limited jurisdiction over certainEU third-pillar matters.

The CFI was set up in 1989 as a response to an increasing case-load andin order to enable the ECJ to concentrate on the uniform interpretationof Community law. It is not a fully independent court; its legal basis is tobe found in Article 168a of the European Community (EC) Treaty, whichprovides that: ‘A Court of First Instance shall be attached to the Court ofJustice.’ Instead of providing the CFI with its own statute, certain newarticles were added the ECJ’s Statute, and other articles were extended.

Private litigants cannot sue member states for alleged breaches ofCommunity law. However, private parties have locus standi before theCFI as regards the actions of Community institutions.191 Natural or legalpersons may institute four categories of cases. First, the Court hearsdisputes between the Community and its servants under Article 236 ofthe Treaty Establishing the European Community (the EC Treaty).

Services v. Italy, ResChS(2001)4 on No. 5/1999; European Federation of Employees in PublicServices v. Portugal, ResChs(2001)6 on No. 7/2000; International Federation of Human Rightsv. Greece, ResChS(2002)2 on No. 10/2000; STTK r.y. and Tehy r.y. v. Finland, ResChs(2002)3on No. 8/2000; Quakers’ Council for European Affairs v. Greece, ResChS(2002)4 onNo. 9/2000; Confederation francaise de l’Encadrement CFE-CGC v. France, ResChS(2002)5 onNo. 11/2001; European Council of Police Trade Unions v. Portugal.

190 For a discussion on this question, see Churchill and Khaliq, ‘The Collective ComplaintsSystem’, pp. 455–456.

191 The investigation on NGO participation in proceedings before the CFI and the ECJ islimited to the European Economic Community (EEC).


Secondly, private parties may seek judicial review under Article 230(para. 4), i.e. the annulment of a decision taken by a Communityinstitution. Such actions may be brought by the addressee of thedecision or by a party to whom the decision is of direct and individualconcern. The meaning of the expression ‘direct and individual con-cern’ was clarified by the ECJ in the case of Plaumann & Co. v.Commission, and has been settled in subsequent case-law.192 TheCourt concluded that a decision could be of individual concern topersons other than the addressee only if it affects third parties ‘byreason of certain attributes which are peculiar to other persons and byvirtue of these factors distinguishes them individually just as in thecase of the person addressed’.193

Thirdly, natural or legal persons may complain that an institution ofthe Community has failed to act when such failure is contrary toCommunity law (Article 232, para. 3). This type of action is subject to adouble restriction: the failure must concern an act of a binding char-acter and the act must be addressed to the complaining person indivi-dually. Finally, natural and legal persons may bring claims forcompensation as a consequence of the Community’s non-contractualliability for damage caused by its institutions or servants in the perfor-mance of their duties (Articles 235, 288). The scope ratione personae of thefirst three types of cases is the same – ‘any natural or legal person’ –while the fourth category is open to anyone who has suffered damagecaused by a Community institution.

About half of the cases brought before the CFI are staff cases. Thesewill be left aside here as they are not particularly relevant to the centralissues of the study. It can be mentioned, however, that trade unionsoften appear in support of the applicants in these cases, especially theUnion Syndicale, which is the Community civil servants’ union.194 Themajority of the other cases concern economic issues, mostly competi-tion law. In view of the dominant subject matters of Community

192 European Court of Justice, Plaumann & Co. v. Commission of the European EconomicCommunity, Case 25/62, 15 July 1963. See also, e.g, Spijker Kwasten BV v. Commission(Case 231/82), 14 July 1983 and Piraiki-Patraiki et al. v. Commission (Case 11/82),17 January 1985.

193 European Court of Justice, Plaumann & Co. v. Commission of the European EconomicCommunity, Case 25/62, 15 July 1963, Summary para. 4.

194 Neville March Hunnings, The European Courts, London: Cartermill Publishing,1996, p. 211.


legislation and of the cases before the Courts, it is thus not surprisingthat there are few cases which have been instituted by NGOs.Nevertheless, there are a few cases worth mentioning.

An interesting case brought up the central question of locus standi

under Article 230 (formerly Article 173) for NGOs formed for the protec-tion of collective interests in cases concerning judicial review.195

The case, Stichting Greenpeace Council (Greenpeace International) and others v.

Commission, was brought by Greenpeace International before the CFI and later

to the ECJ. The background to the case was a decision adopted by the

Commission in 1991 to grant Spain financial assistance for the building of two

power stations in the Canary Islands by Union Electrica de Canarias SA (Unelco).

Two of the applicants in the case informed the Commission by letter in

December 1991 that the works carried out on Gran Canaria were unlawful as

Unelco had failed to undertake an environmental impact assessment study in

accordance with a Council Directive, and asked the Commission to intervene to

stop the works. Subsequently, several environmental NGOs and other appli-

cants in the case contacted the Commission and instituted domestic proceed-

ings against the project. InMay 1993, Greenpeace asked the Commission for full

disclosure of all information relating tomeasures it had takenwith regard to the

construction of the two power stations. The request was rejected.

The applicants brought an action before the CFI seeking annulment of the

decision of the Commission to disburse funds to the Spanish government in

reimbursement of expenses incurred in the construction of the power stations.

The Commission raised an objection of inadmissibility in support of which it

raised two pleas, one of which concerned the nature of the contested decision,

and the other the applicants’ lack of locus standi. The CFI upheld the

Commission’s objection and declared the action inadmissible. It recalled that

it had consistently been held in the case-law that an association formed for the

protection of the collective interests of a category of persons could not be

considered to be directly and individually concerned for the purposes of (for-

mer) Article 173, para. 4 by a measure affecting the general interests of that

category. An association was therefore not entitled to bring an action for annul-

ment where its members could not do so individually. The CFI went on to

195 The question of locus standi under Article 230 is a complicated subject, and I am notattempting to provide the full picture, merely to describe some of the issues whichmay arise for NGOs seeking to advance public interests on the basis of this Article. Formore general information, see, e.g., AngelaWard, Judicial Review and the Rights of PrivateParties in EC Law, Oxford University Press, 2000, pp. 239 ff.; Hunnings, The EuropeanCourts, pp. 211–213; Paul Craig, ‘The Jurisdiction of the Community CourtsReconsidered’, in Graınne de Burca and J. H.H. Weiler, The European Court of Justice,Oxford University Press, 2001, pp. 177–214.


observe that special circumstances, such as the role played by an association in a

procedurewhich led to the adoption of an act within themeaning of Article 173,

might justify treating an action as admissible, even if it had been brought by an

associationwhosememberswere not directly and individually concerned by the

contested measure. The Court concluded, however, that the exchange of corre-

spondence and the discussions which Greenpeace had with the Commission

concerning the financing of the project for the construction of the power

stations did not constitute special circumstances of that kind since the

Commission had not initiated any procedure in which Greenpeace participated

prior to the adoption of the contested decision.

The appellants argued in their appeal, inter alia, that the approach adopted by

the CFI created a legal vacuum in ensuring compliance with Community envir-

onmental legislation, since in this area the interests were by their very nature

common and shared. The rights relating to those interests were also liable to be

held by a potentially large number of individuals so that there could never be a

closed class of applicants satisfying the criteria adopted by the CFI. The appel-

lants further argued that environmental protection was one of the

Community’s essential objectives in accordance with earlier judgements and

submitted that Community environmental legislation could create rights and

obligations for individuals. According to the appellants, environmental associa-

tions should be recognised as having locus standi where their objectives con-

cerned chiefly environmental protection and one ormore of theirmembers was

individually concerned in the contested Community decision, but also where

their primary objective was environmental protection and they could demon-

strate a specific interest in the question at issue.

The ECJ observed that the interpretation of Article 173(4) which the CFI had

applied in concluding that the appellants did not have locus standi was in accor-

dance with the settled case-law of the Court. As far as natural persons were

concerned, it followed from this case-law that where the specific situation of the

applicant was not taken into consideration in the adoption of an act, which

concerned the applicant in a general and abstract fashion like any other person

in the same situation, the applicant was not individually concerned in the act.

The same applied to associations claiming to have locus standi on the basis of the

fact that the persons whom they represented were individually concerned by

the contested decision.196

It has been suggested that the reluctance on the part of the CFI to revisethe criteria for locus standi under Article 230(4), as determined in thePlaumann and subsequent cases, was partly due to a fear of being

196 European Court of Justice, Case C-321/95 P, Stichting Greenpeace Council (GreenpeaceInternational) and others v. Commission, Judgement of 2 April 1998.


flooded with appeals.197 It thus seems clear that an expansion of locusstandi cannot take place without a treaty amendment.198

Svenska Journalistf orbundet v. Council of the European Union is anotherexample of a case instituted by an NGO for reasons of public interest.

Svenska Journalistforbundet is the Swedish Journalists’ Union. Following

Sweden’s accession to the European Union, the applicant decided to test the

way in which Swedish authorities applied Swedish citizens’ right of access to

information in respect of documents relating to European Union activities. For

that purpose, the organisation contacted forty-six Swedish authorities seeking

access to Council documents relating to the setting up of Europol, and was

granted access to eighteen of the twenty documents requested. The applicant

also applied to the Council of the European Union requesting access to the same

twenty documents under Council Decision 93/731/EC on public access to

Council documents. The Council’s General Secretariat allowed access to only

two documents, while access to the other eighteen documents was refused on

the ground that they were ‘subject to the principle of confidentiality as laid

down in Article 4(1) of Decision 93/731’. The applicant then submitted a con-

firmatory application to the Council in order to obtain re-examination of the

decision refusing access. The Council replied that it agreed to grant access to two

other documents but rejected the application for the remaining sixteen. It

explained that, in its opinion, ‘access to those documents cannot be granted

because their release could be harmful to the public interest (public security)

and because they relate to the Council’s proceedings, including the positions

taken by the members of the Council’. The documents were therefore covered

by the duty of confidentiality.

The applicant instituted an action before the CFI applying for the annulment

of the Council’s decision of refusing access to the documents. Denmark,

Netherlands and Sweden were granted leave to intervene in support of the

applicant, while France and the United Kingdom intervened in support of the

defendant. The Council requested the Court to, inter alia, declare the application

inadmissible or reject it as unfounded. It held that, although it was conscious of

the fact that the applicant was the addressee of the contested decision, it

questioned whether the applicant was really affected by that decision within

the meaning of Article 173 of the EC Treaty, as that article did not allow

individual actions in the public interest but only permitted individuals to

challenge acts which concerned them in a way in which they did not concern

other individuals. The applicant’s interest was of a general and political nature,

197 Paul JoanGeorge Kapteyn and Pieter VerLoren van Themaat, Introduction to the Law of theEuropean Communities, 3rd edn., London: Kluwer International, 1998, pp. 487–488.

198 For proposals of amendments of Article 230 that could create more effective judicialprotection, see Ward, Judicial Review and the Rights of Private Parties in EC Law,pp. 256–260.


its intention being to ensure that the Council gave proper effect to its own Code

of Conduct and Decision 93/731. The Council further contended that the release

of the documents in question by the Swedish authorities to the applicant con-

stituted a breach of Community law, since no decision had been taken to

authorise such a disclosure.

The Court found that the applicant was the addressee of the contested deci-

sion and, as such, not obliged to prove that the decision was of direct and

individual concern to it. It needed to prove only that it had an interest in the

annulment of the decision. The objective of Decision 93/731 was to give effect to

the principle of the largest possible access for citizens to information with a

view to strengthening the democratic character of the institutions and the trust

of the public in the administration. According to the Council’s decisions, it was

not required that members of the public put forward reasons for seeking access

to requested documents. It therefore followed that a person who was refused

access to a document or to part of a document had, by virtue of that very fact,

established an interest in the annulment of the decision. The application was

thus declared admissible. In its consideration of themerits of the case, the Court

found that the contested decision should be annulled.199

Again, one of the central questions of the case was whether the NGOhad a sufficiently strong interest in the contested decision – if thedecision was of ‘direct and individual concern’ to the organisation, asprovided in Article 230, para. 4. As the Journalists’ Union had estab-lished such an interest already by the Council’s decision to refuseaccess to the documents, the fact that the Union’s reasons for therequest were of a general and political nature became irrelevant. It isprobable that there are other practices by Community institutionsthat could be challenged in a similar way by a private person or byan NGO.

An earlier case which actualised the question of locus standi in casesconcerning judicial reviewwas instituted by the ecologist party Les Verts,an NGO headquartered in Paris.

In the case of Parti ecologiste ‘Les Verts’ v. European Parliament the party brought

an action requesting the Court to declare void a decision of the Bureau of the

European Parliament. The decision concerned the apportionment and use of

funds destined to reimburse political groups for expenditures to be incurred in

the 1984 European elections. The Court found that a political grouping which,

unlike its rivals, was not represented in the European Parliament but which

was able to put up candidates in the direct elections to the Parliament must, in

199 Court of First Instance, Case T-174/95, Svenska Journalistf orbundet v. Council of the EuropeanUnion, 17 June 1998.


order to avoid inequality in the protection afforded by the Court to groupings

competing in the same elections, be regarded as being both directly and individu-

ally concernedbymeasures adopted by the Parliament for the purpose of allocating

appropriations entered in its budget for the financing of the information campaign

preceding those elections. The challenged decision was thus declared void by the

Court.200

In addition to the cases described above, there are examples of casesbrought by consumers’ organisations, trade unions, industrial organisa-tions and producers’ associations.201

The requirements for locus standi formulated in Article 230 have beendiscussed by the ECJ as well as by scholars. The report of the Court ofJustice on Certain Aspects of the Application of the Treaty on EuropeanUnion discusses the Court’s role in examining whether fundamentalrights have been respected by the Community authorities and themember states. In this context the question is put whether the rightfor private parties to bring an action for annulment under Article 230 issufficient to guarantee effective judicial protection against possibleinfringements of fundamental rights arising from the legislative activ-ity of the Community institutions.202 In another report on the Roleand Function of the European Court of Justice, published in 1996 byMembers of the EC Section of the Advisory Board of the British Instituteof International and Comparative Law, it is suggested that the locusstandi provision in Article 230 should be broadened.203 It is observedthat although the rule on direct and individual concern has been some-what relaxed in the Court’s case-law, the situation is still far fromsatisfactory, especially in relation to representative bodies. The writers

200 Case 294/83, Parti ecologiste ‘Les Verts’ v. European Parliament, 23 April 1986.201 Examples include Cases T-256/97, Bureau Europeen des Unions de Consummateurs (BEUC) v.

Commission, 27 January 2000; T-224/95, Syndicat des Exploitants de Lieux de Loisirs (SELL) v.Commission, 27 November 1997; T-82/96, Associacao dos Refinadores de Acucar Portugueses(ARAP) v. Commission, 17 June 1999; C-313/90, Comite International de la Rayonne et des FibresSynthetiques v. Commission, 24 March 1993; T-135/96, Union Europeenne de l’artisanat et despetites et moyennes entreprises (UEAPME) v. Council, 17 June 1998. See also Forum desmigrants de l’Union europeenne v. Commission, 9 April 2003, regarding the Commission’sdecision to terminate its financial support to an international NGO, and InternationalerHilfsfonds eV v. Commission, 18 September 2003, on the Commission’s decision to refuseapplications for the co-financing of projects submitted by the applicant.

202 Report of the Court of Justice on Certain Aspects of the Application of the Treaty on EuropeanUnion, May 1995, para. 20. Reprinted in Hunnings, The European Courts, p. 172.

203 The Role and Function of the European Court of Justice, A Report by Members of the ECSection of the British Institute’s Advisory Board chaired by the Rt Hon. the Lord Slynnof Hadley, The British Institute of International and Comparative Law, 1996, pp. 93–94.


suggest that the provision should be relaxed provided that the capacityof the CFI is expanded through an increase in the number of judges, thecreation of specialised chambers and other measures.204

The Inter-American System for Human Rights

The procedure

The Inter-American Commission, established in 1960, examines indivi-dual communications regarding human rights violations within theterritory of the OAS member states under two parallel procedures.First, the Commission was authorised through a re-formulation of itsStatute in 1965 to examine individual complaints or petitions regardingspecific cases of violations of human rights as expressed in the AmericanDeclaration of the Rights and Duties of Man of 1948.205 Secondly, whenthe American Convention on Human Rights was adopted in 1969, theindividual complaints procedure was included in the Convention andthereby became operational towards all the contracting parties.206 TheAmerican Convention on Human Rights also completed the legal struc-ture of the Inter-American human rights systemwith the establishmentof the Inter-American Court of Human Rights.

The present Statute of the Commission was approved by the OASGeneral Assembly in 1979. The Statute distinguishes between theCommission’s competence vis-a-vis state parties to the Convention andin relation to member states of the OAS not parties to theConvention.207

The right to file petitions with the Commission concerning violationsof the human rights enumerated in theConvention is based onArticle 44:

Any nongovernmental entity legally recognized in one or more member statesof the Organization, may lodge petitions with the Commission containingdenunciations or complaints of violation of this Convention by a State Party.

As is clear from this provision, the possibilities for NGOs to act withinthe Inter-American system are in some respects more extensive than

204 It can be noted that the Treaty of Nice allows for this, see Article 2(32) regarding newArticle 225 a.

205 American Declaration of the Rights and Duties of Man, adopted by the NinthInternational Conference of American States, Bogota, Colombia, 1948.

206 OAS Treaty Series No. 36.207 Statute of the Inter-American Commission on Human Rights, October 1979,

Articles 19, 20.


within the European human rights system, although NGOs and indivi-duals do not have locus standi before the Inter-American Court. It is nocondition for a complaint to be accepted that the petitioner has beensubjected to a violation of the Convention, and the petitioner does notneed to be legally empowered to act on behalf of the victim. While theConvention does not recognise actio popularis, or communicationslodged in abstracto without the naming of a victim, it suffices that thealleged victim is only potentially affected by, for instance, a legal provi-sion.208 The generous locus standi rules are an important advantage tohuman rights NGOs, which can lodge petitions that concern identifiedvictims but which are also of general interest. The circle of actorsentitled to lodge petitions is also wide; ‘any nongovernmental entity’includes individuals and groups as well as commercial and non-commercial entities.209 Furthermore, the complaining NGO does nothave to be legally recognised in the respondent state. It suffices that itis recognised by one of the OASmember states. In fact, the alleged victimneed not even approve of the complaint. Article 23 of the Commission’sRules of Procedure states that petitionsmay be submitted by persons andnon-governmental entities ‘on their own behalf or on behalf of thirdpersons, concerning alleged violations’, and according to Article 28(e) ofthe Rules, a petition shall contain the name of the victim ‘if possible’.210

As regards the possibility of NGOs as victims of a violationenshrined by the American Convention, it should be noted that theConvention protects ‘persons’, who are defined as every human being(Article 1, paras. 1–2). The Convention thus does not protect NGOs orother legal persons as such.211 Rights which can be associated withorganisations or other legal entities, such as the right to freedom of

208 American Convention on Human Rights, Article 44, Rules of Procedure of the Inter-American Commission on Human Rights (as Approved by the Commission at its 109thSpecial Session, December 4–8, 2000); Article 28, Case of Metropolitan Nature Reserve,Report No. 88/03 in OEA/Ser.L/V/II.118, Annual Report of the Inter-American Commission2003, December 29, 2003, paras. 29–32; Thomas Buergenthal, ‘The Inter-AmericanCourt of Human Rights’, 76 AJIL (1982), p. 237.

209 See Article 28(a) of the Commission’s Rules of Procedure. Most juridical persons thatlodge petitions are (non-commercial) NGOs. For an example of a case instituted by a(presumably) commercial actor, see Report No. 127 in OEA/Ser.L/V/II.114, Annual Reportof the Inter-American Commission 2001, 16 April 2002,where a law firmacted as petitioner.

210 Rules of Procedure of the Inter-American Commission on Human Rights, Approved by theCommission at its 109th Special Session, December 4–8, 2000, last amended onOctober 7–24, 2003.



association under Article 16 of the Convention, are protected as indivi-dual rights.212

Twenty-five of the thirty-five member states of the OAS are parties tothe Convention.213 For OAS member states that are not parties to theConvention, the Commission continues to apply the AmericanDeclaration of the Rights and Duties of Man. It is clear from theCommission’s Rules of Procedure that it employs the same rules onlocus standi regarding violations of the Declaration as it does for viola-tions of the Convention.214 The Declaration was not legally binding atthe time of its adoption. According to Scott Davidson, the Declarationhas become an instrument which creates legally binding obligations forall OAS member states, although it is not possible to ascertain theprecise nature of these obligations.215

If a friendly settlement cannot be reached between the parties, theCommission prepares a report which may include its conclusions andrecommendations to the state concerned. This report is confidential.216

If, after a period of three months, the matter has not been settled and

212 In the case of Statehood Solidarity Committee v. USA, the petition was filed by anindividual on behalf of the members of an NGO (as well as on behalf of all US citizensresident in theDistrict of Columbia), whose rights under the AmericanDeclaration thestate had allegedly violated, see Report (on the merits) No. 98, Annual Report of theInter-American Commission 2003, OEA/Ser.L/V/II.118, 29 December 2003.

213 As of 2003, OEA/Ser.L/V/II.118, Annual Report of the Inter-American Commission on HumanRights 2003, December 29, 2003, annex 2.

214 Article 28(f) provides that petitions shall contain information regarding ‘the State thepetitioner considers responsible, by act or omission, for the violation of any of thehuman rights recognized in the American Convention on Human Rights and otherapplicable instruments’. In general, the Article does not distinguish between petitionsconcerning the Convention and petitions regarding the Declaration.

215 Scott Davidson, The Inter-American Human Rights System, Aldershot: Dartmouth 1997,pp. 23–30. This evaluation of the Declaration is made by reference to, inter alia, thejudgement of the Court in its Advisory Opinion OC-10/89 of 14 July 1989, Interpretationof the American Declaration of the Rights and Duties of ManWithin the Framework of Article 64 ofthe American Convention on Human Rights, and the decision in 1981 of the Inter-AmericanCommission in the Baby Boy case. According to Eriksson, the Declaration represents anauthoritative interpretation of the OAS Charter, Maja Kirilova Eriksson, Skydd avmanskliga rattigheter: Det Interamerikanska Systemet, 2nd edn., Uppsala: Iustus Forlag(1994), p. 19.

216 Article 50. As regards confidentiality, the Article states only that ‘the report shall betransmitted to the states concerned, which shall not be at liberty to publish it’. TheCourt held in the Certain Attributes case that the presumption of equality between theparties implied that the Commission was not free to publish this report. AdvisoryOpinion OC-13/93, Certain Attributes of the Inter-American Commission on Human Rights,16 July 1993, para. 48. See further Davidson, The Inter-American Human Rights System,pp. 183–185.


the case has not been submitted by the state party or the Commissionto the Court, the Commission may set out its opinions and conclusionsin a second report under Article 51. The Commission has no power tooffer compensation or other remedies. It may, however, make recom-mendations to the respondent state, prescribe the remedial measuresthat should be taken and the time period within which this should bedone.217 If the state concerned does not solve the situation, theCommission may decide to publish its report, as part of its AnnualReport to the OAS General Assembly or in some other suitablemanner.218 Its decisions and recommendations are not legally binding.

Rather than preparing a second report for publication, theCommission may decide to take the case to the Inter-American Court.According to Article 62(3) of the Convention, the Court’s adjudicatory orcontentious jurisdiction comprises all substantive rights protected bythe Convention, provided that the state parties to the case recognise orhave recognised the jurisdiction of the Court. Only state parties and theCommission have locus standi before the Court. The alleged victims, theirnext of kin or their representatives may, however, submit requests,arguments and evidence, autonomously, throughout the proceedingsunder Rule 23(1) of the Court’s Rules of Procedure.219 The Court mayalso hear the petitioner, who is often someone else than the allegedvictim (in many cases, an NGO), under Rule 44(1) as a ‘witness, expertwitness or in any other capacity’.220 If the Court finds that there has been aviolation of a right or freedom protected by the Convention, the Courtshall rule that the injured party be ensured the enjoyment of the right. TheCourt can also rule that a fair compensation be paid to the injured party.

The Inter-American Commission

The annual reports of the Inter-American Commission contain all casereports on the merits that the Commission has decided to publish.Relatively few reports are published; as of 2003, the Commission hadexamined more than 13,000 complaints, resulting in the publication of

217 American Convention on Human Rights, Article 51(1–2), and Rules of Procedure of theInter-American Commission on Human Rights, December 2000, Article 45(1–2). See alsoDavidson, The Inter-American Human Rights System, pp. 118, 179.

218 Article 51(3) of the Convention and Rules of Procedure of the Inter-American Commission onHuman Rights, Article 45(3).

219 Rules of Procedure of the Inter-American Court of Human Rights, as Approved by the Court atits Forty-Ninth Regular Session, November 16–25, 2000.

220 See also Davidson, The Inter-American Human Rights System, pp. 138–139.


some 600 case reports.221 It should also be observed that the case reportsoften do not state who has filed the petition, which means that it isimpossible to determine exactly how many cases have been lodged byNGOs on the basis of these reports.

The Commission’s Annual Report for 2003 included six case reportson the merits and eleven friendly settlements.222 Thirteen of theseseventeen cases originated in petitions filed by NGOs.223 The reportfor 2002 contained eleven reports on the merits and three friendlysettlements. Of these fourteen cases, at least seven were cases lodgedby NGOs.224 For the year 2001, the Commission published four casereports on themerits and eight friendly settlements. Out of these twelvecases, nine originated in petitions filed by NGOs.225 During the previousthree-year period, the Annual Reports contained seventy-seven casereports on the merits and eighteen friendly settlements. Out of theseninety-five cases, at least forty-three were instituted by NGOs.226 Thismeans that out of a total of 138 case reports on the merits and onfriendly settlements covering a period of six years, at least seventy-twocases had been instituted byNGOs, alone or togetherwith other bodies orindividuals. It can be assumed that NGOs have been involved in thepreparation of many more petitions.227

The cases lodged before the Inter-American Commission are, gen-erally speaking, different in their character as compared to, for

221 OEA/Ser.L/V/II.118, Annual Report of the Inter-American Commission on Human Rights 2003,December 29, 2003, para. 5.

222 According to the report, the Commission adopted 121 case reports during the twosessions covered by the report, OEA/Ser.L/V.II.118, paras. 11, 15.

223 Ibid., Reports No. 40, 63, 64, 66–69, 71, 91, 97, 98, 100. In No. 91, the NGO acted asco-petitioner together with an individual. The identity of the petitioner was withheldin one case (No. 70).

224 OEA/Ser.L/V/II.117, Annual Report of the Inter-American Commission on Human Rights 2002,March 7, 2003, Reports No. 23, 32, 33, 52, 62, 78, 75. In one case (Report No. 57), theidentity of the petitioners was withheld.

225 OEA/Ser.L/V/II.114, Annual Report of the Inter-American Commission on Human Rights 2001,April 16, 2002, Reports No. 66, 100, 104–110. Eight of these petitions were filed by thesame NGO, Comision Ecumenica de Derechos Humanos (CEDHU).

226 OEA/Ser.L/V/II.102, Annual Report of the Inter-American Commission on Human Rights 1998,April 16, 1999; OEA/Ser.L/V/II.106, Annual Report of the Inter-American Commission onHuman Rights 1999, April 13, 2000; OEA/Ser.L/V/II.111, Annual Report of the Inter-AmericanCommission on Human Rights 2000, April 16, 2001.

227 For instance, NGOs sometimes act as the victim’s formal representative, see, e.g.,OEA/Ser.L/V/II.111, Annual Report of the Inter-American Commission on Human Rights 2000,April 16, 2001, Reports 93/00, 94/00, 98/00. In addition to such cases, it is reasonable toassume that NGOs sometimes act ‘behind the scenes’.


instance, cases before the (former) European Commission or Court. Thesituations examined are often violent, and many cases concern dis-appearances or killings. It is natural that human rights NGOs play animportant role in bringing such cases to the attention of theCommission. It can even be assumed that the Commission depends onpermissive locus standi rules, as the institution of a case may be asso-ciated with risks for the petitioner, and the extent and nature of manyviolations require resources and general knowledge for the establish-ment of facts, as well as legal expertise of how to meet the admissibilitycriteria.228 Another factor which supports this supposition is that illit-eracy rates in some countries in Latin America are high.

The violent character of the cases examined by the Commission alsohas the consequence that the reports publicised are focused more ondetermining the admissibility and facts of the case than on interpretingand analysing the different rights enshrined in the Convention.229 Themain strategy of NGOs acting before the Commission thus appears to beto bring cases to public attention rather than to promote a dynamicdevelopment of the case-law. One exception in this regard, however, isthe organisation Interights, which has worked with issues related tothe death penalty over a number of years. Interights has submitted apetition to the Inter-American Commission in such a case and hasadvised lawyers in other cases.230 Another exception is the case ofMarıa Eugenia Morales de Sierra v. Guatemala, which was submitted bythe Center for Justice and International Law (CEJIL) together with thealleged victim as amethod for questioning the Guatemalan Civil Code inabstracto, as the Code was considered to create discriminatory distinc-tions between men and women.231

A few NGOs appear as petitioners in many cases. These include CEJIL,the Colombian Commission of Jurists, Asociacion Pro Derechos

228 Tragically, a number of persons who have reported on human rights violations orwitnessed in cases before the Commission have been assassinated, disappeared orbeen driven into exile. David J. Padilla, ‘The Inter-American Commission on HumanRights of the Organization of American States: A Case Study’, 9 American UniversityJournal of International Law and Policy (1993), p. 106. See also Davidson, The Inter-AmericanHuman Rights System, p. 140.

229 See also Davidson, The Inter-American Human Rights System, p. 261.230 Interights, Annual Review 98–99, p. 48, and Annual Review 99–2000, p. 48.231 Case 11.625, included in OEA/Ser.L/V/II.111, Annual Report of the Inter-American

Commission on Human Rights 2000, April 16, 2001. Interights and several other NGOsparticipated as amici at the admissibility stage of the case, see section 6.1.


Humanos (APRODEH), AmericasWatch (nowHuman RightsWatch) andComision Ecumenica de Derechos Humanos (CEDHU).

According to an article by the Assistant Executive Secretary of theCommission, one of the explanations of the important role played byNGOs in the Inter-American human rights system is that they havecreated transnational networks.232 Thanks to these networks, victimscan present a complaint regarding a human rights violation to an NGOin the victim’s home country and, once the complaint has been investi-gated, the casemay be argued before the Commission and eventually theCourt by an international teamof lawyers. NGOs also carry out importantfunctions at other stages of the proceedings, as well as in the work of theCommission in general. For instance, NGOs participate in the investiga-tion of cases, assist in the conduct of on-site visits, request provisionalmeasures in serious and urgent cases and monitor compliance with therecommendations of the Commission and the decisions of the Court.233

The Inter-American Court

The Court’s mandate is described in Article 1 of its Statute as ‘anautonomous judicial institution whose purpose is the application andinterpretation of the American Convention on Human Rights’.234

AlthoughNGOs are unable to refer cases to the Court, it is an interestingquestion to what extent NGOs manage to influence the case-law of theCourt through the cases lodged by them before the Commission andwhich are later referred to the Court. The advisory jurisdiction of theCourt cannot be invoked by private parties.235

As of August 2004, the Inter-American Court had delivered judge-ments on the merits in forty-five contentious cases. At least fifteen ofthese originated in petitions filed by NGOs (alone or together with other

232 Padilla, ‘The Inter-American Commission on Human Rights’, p. 98.233 Ibid. It is also demonstrated by several judgements of the Court that experts fromNGOs

have acted as the Commission’s assistants before the Court – see, e.g., Series C:Decisions and Judgments, Case of El Amparo v. Venezuela, 18 January 1995, para. 6.In other judgements, it is not mentioned that the experts are NGO officers, but thepersons appointed as assistants of the Commission are in fact NGO staff members. Forinstance, in judgementNo. 69 in the case of Cantoral Benavides v. Peru of 18 August 2000,the Commission appointed Jose Miguel Vivanco and Viviana Krsticevic of the NGOsHuman Rights Watch – Americas and CEJIL as assistants. The assistants also acted asrepresentatives of the victim. CEJIL has further filed petitions before the Commissionand submitted amicus briefs to the Court. See also section 6.4 on amicus curiaesubmissions.

234 Statute of the Inter-American Court of Human Rights, October 1979.235 American Convention on Human Rights, Article 64.


entities or individuals) before the Inter-American Commission.236 Oneadditional case originated in an ‘urgent action’ appeal, which had prob-ably been filed by an NGO.237 It can be observed that during 2003 and2004, nine out of ten judgements on the merits concerned cases whichoriginated in petitions filed with the Commission by NGOs.

A couple of cases can be briefly described as an illustration.

The Blake case was initiated by International Human Rights LawGroup through a

petition lodged against Guatemala. The petition concerned the alleged abduction

andmurder of a US citizen and journalist by agents of the Guatemalan state and

his disappearance, which lasted over seven years. The Court declared that the

state had violated the judicial guarantees set out in Article 8(1), the right to

humane treatment enshrined in Article 5 and that it was obliged to use all

means to investigate the acts denounced and punish those responsible. The

Court delivered separate judgements on the questions of preliminary objec-

tions, the merits, reparations, as well as on the interpretation of the judgement

on reparations.238 The International Human Rights Law Group, which filed the

petition, also acted as representative of the injured party at the reparations

stage of the proceedings on a pro bono basis.

The case of Baena Ricardo et al. v. Panama originated in a petition filed with the

Commission by the Comite Panameno por los Derechos Humanos on behalf of

270 workers. The case concerned the adoption of a law which had the effect of

arbitrarily dismissing workers who had participated in a demonstration con-

cerning labour-related issues. While the demonstration was held, a former head

of the National Police Force and other members of the armed forces who had

been detained, escaped from a prison and took the principal barracks of the

National Police Force. The state related this act to the march organised by

the trade union leaders and accused the workers who had participated in the

236 The Inter-American Court of HumanRights, Series C: Decisions and Judgments, No. 36,Blake v. Guatemala, 24 January 1998; No. 52, Castillo Petruzzi et al. v. Peru, 30 May 1999;No. 63,VillagranMorales et al. v.Guatemala, 19November 1999; No. 72, Baena Ricardo et al. v.Panama, 3 February 2001; No. 73, ‘The Last Temptation of Christ’ v. Chile, 5 February 2001;No. 75, Barrios Altos v. Peru, 14 May 2001; No. 98, Cinco Pensionistas v. Peru, 28 February2003; No. 99, Juan Humberto Sanchez v. Honduras, 7 June 2003; No. 100, Bulacio v.Argentina, 18 September 2003; No. 101, Myrna Mack Chang v. Guatemala, 25 September2003; No. 103,Maritza Urrutia v. Guatemala, 27 November 2003; No. 105,Masacre Plan deSanchez v. Guatemala, 29 April 2004; No. 106, Molina Theissen v. Guatemala, 4 May 2004;No. 109, 19 Comerciantes v. Colombia, 5 July 2004; and No. 110, Los Hermanos GomezPaquiyauri v. Peru, 8 July 2004. The identity of the petitioner is sometimes withheld,so the petitioner might have been an NGO in some of the other cases as well.

237 Ibid., No. 22, Caballero Delgado y Santana v. Colombia, 8 December 1995.238 Ibid., Blake v. Guatemala, No. 27 (Preliminary objections), 2 July 1996; No. 36 (Merits),

24 January 1998; No. 48 (Reparations), 22 January 1999; No. 57 (Interpretation of thejudgement on reparations), 1 October 1999.


demonstration of being accomplices of the military riot. As a consequence, the

government sent a draft law to the legislative assembly and, without waiting for

approval, dismissed the 270 workers. The Court declared that the state had

violated the rights contained in Articles 8, 9, 15, 16 and 25 of the Convention,

and recommended the state to, inter alia, re-employ the workers who had been

dismissed.239 TheNGOs Centro de Asesorıa Laboral del Peru, Centro deDerechos

Economicos y Sociales, Centro de Estudios Legales y Sociales and the Colombian

Commission of Jurists presented a joint amicus curiae brief.240 The Court deliv-

ered a separate judgement on Preliminary Objections.241

As has been shown, a large part of cases decided upon by the Inter-American Court originated in a petition filed by an NGO. In general, theoverall importance of NGOs in proceedings before the Commission andthe Court must be regarded as considerable, as they act in many differ-ent capacities. As has been discussed above, NGOs submit a large part ofthe petitions before the Commission, act as the representative of thevictim and co-operate with the Commission in several ways. NGOs alsooften file amicus curiae briefs in proceedings before the Commission andthe Court, as will be further described in chapter 6.

The African Commission and Court for Human and Peoples’ Rights

In June 1981, the Assembly of Heads of States and Governments ofthe Organization of African Unity (OAU) adopted a human rights treaty,the African Charter on Human and Peoples’ Rights, also known as theBanjul Charter. The Charter entered into force in October 1986.

According to the Banjul Charter, the Member states shall recognise anumber of human and peoples’ rights, both civil and political rights(such as equality before the law, the right of association and assemblyand the right to receive information) and economic, social and culturalrights (such as the right to education and the right to work). Grouprights enshrined by the Charter include, inter alia, the right to existenceand self-determination and the right of peoples to freely dispose overtheir wealth and natural resources.242

The African Commission

The African Commission on Human and Peoples’ Rights is establishedunder Article 30 of the Banjul Charter with the mandate to promote

239 Ibid., No. 72, Baena Ricardo et al. v. Panama, 3 February 2001. 240 Ibid., para. 46.241 Series C: Decisions and Judgments, No. 61, 18 November 1999. 242 See section 4.2.


human and peoples’ rights and ensure their protection in Africa. Theeleven commissioners are nominated by member states and appointedby the OAUHeads of States and governments but serve in their personalcapacity.243

The jurisdiction of the Commission to review communicationsregarding human rights violations is compulsory, i.e. it is automaticallyaccepted by the state upon ratification or accession to the BanjulCharter. State parties can submit a communication to the Commissionif it has good reasons to believe that another state party has violated theprovisions of the Charter.244 According to Article 55, the Commissionmay also receive communications ‘other than those of state parties’.The Commission’s Rules of Procedure do not specify which type of non-state complaints can be received.245 Article 114 of the old Rules gavethis explanation:

(1) Communications may be submitted to the Commission by:(a) an alleged victim of a violation by a State party to the Charter of

one of the rights enunciated in the Charter or, in his name, whenit appears that he is unable to submit the communication himself;

(b) an individual or an organization alleging, with proofs in support, aserious ormassive cases of violations of human and peoples’ rights.

(2) The Commissionmay accept such communications from any individualor organization irrespective of where they shall be.246

As will be shown below, it is clear from the Commission’s practice thatindividuals, groups of individuals, NGOs and other non-state entitiesare entitled to bring communications also under the new Rules.247

243 Articles 31, 33. There have, however, been problems regarding the independence andcredibility of the members of the commission. Two former members served asAttorney General and Minister of the Interior in their respective countries, and acouple of members have held ministerial positions under repressive governments.Evelyn A. Ankumah, The African Commission on Human and Peoples’ Rights. Practices andProcedures, The Hague: Martinus Nijhoff, 1996, pp. 18–19.

244 Article 47.245 Rules of Procedure of the African Commission on Human and Peoples’ Rights, 6 October 1995.246 Rules of Procedure of the African Commission on Human and Peoples’ Rights, 13 February 1988.247 U. Oji Umozurike, The African Charter on Human and Peoples’ Rights, The Hague: Martinus

Nijhoff, 1997, p. 75; Ankumah, The African Commission, p. 24. Umozurike is a formermember and Chairman of the Commission. See, however, Rachel Murray, The AfricanCommission on Human and Peoples’ Rights & International Law, Oxford: Hart Publishing,2000, pp. 67–68. For an example of a (presumably) commercial petitioner, see, e.g.,220/98, in which the communication was filed by the law firm Law Offices of GhaziSuleiman ‘on behalf of all students and university teachers in Sudan’, Fifteenth AnnualActivity Report, 2001–2002, p. 45.


There is no victim requirement for the author of a communication, andthe Commission routinely registers communications submitted byNGOs on behalf of the victim, i.e. NGOs acting without formal author-isation from the alleged victim.248 According to the Commission’sGuidelines on the Submission of Communications:

Anybody, either on his or her own behalf or on behalf of someone else, cansubmit a communication to the Commission denouncing a violation of humanrights. Ordinary citizens, a group of individuals, NGOs, and states Parties to theCharter can all put in claims. The complainant or author of the communicationneed not be related to the victim of the abuse in any way, but the victimmust bementioned.’249

Although it is stated in these Guidelines that the victim must be men-tioned, the Commission does not require a concrete victim, but acceptsactio popularis communications which concern hypothetical andcollectively defined victims.250 Further, the complainant is not requiredto be a citizen of a state member of the OAS, and a complaining NGOdoes not have to be registered in one of the member states. Severalcommunications have been filed by international NGOs based outsideAfrica.

Article 55(2) of the Charter provides that communications ‘other thanthose of state parties’ shall be considered if a simple majority of theCommission so decides. Prior to any substantive consideration, all com-munications shall be brought to the knowledge of the state concerned.According to Article 56, communications shall be considered if they,among other things, indicate their authors even if anonymity isrequested, are compatible with the OAU Charter and the BanjulCharter, are sent after exhausting local remedies, if any, unless it isobvious that this procedure is unduly prolonged and are not written indisparaging or insulting language directed against the state concerned.

248 Naturally, NGOs can also act in the capacity of the victim’s counsel, but in that case thevictim is the petitioner, not the NGO. For a discussion on the distinction betweenformal representatives of the victim and petitioners acting on behalf of the victimunder the individual communication procedure, see Inger Osterdahl, ImplementingHuman Rights in Africa: The African Commission on Human and Peoples’ Rights and IndividualCommunications, Uppsala: Iustus Forlag, 2002, pp. 95–96, 99.

249 African Commission onHuman and Peoples’ Rights, Information Sheet No. 2, Guidelines onthe Submission of Communications, p. 5.

250 For example, the communication in case 220/98, The Law Offices of Ghazi Suleiman v.Sudan, was filed ‘on behalf of all students and university teachers in Sudan’, FifteenthAnnual Activity Report, 2001–2002, p. 45. See also Osterdahl, Implementing Human Rights inAfrica, pp. 101 ff.


A communication lodged by an NGO in a case against Cameroon wasdeclared inadmissible on this latter ground.

Communication 65/92 in the case of Ligue Camerounaise des Droits de l’Homme v.

Camerounwas declared inadmissible by the Commission during its 21st Ordinary

Session. The Commission stated that ‘the allegations submitted by the Ligue

Camerounaise are of a series of serious and massive violations of the Charter.

The Communication contains statements such as ‘‘Paul Biya [i.e. the President of

Cameroon] must respond to crimes against humanity’’, ‘‘regime of torturers’’,

and ‘‘government barbarisms’’. This is insulting language.’251

Because of its subjective character, there could be a risk that theprovision regarding insulting language would be used as a means ofdismissing communications alleging serious human rights violations.However, the Commission’s six last Annual Activity Reports do notinclude any case where the provision has been used.252

The procedural steps that the Commission should takewith respect to‘other’ communications are specified in Chapter XVII of the AmendedRules of Procedure. If the Commission decides that a communication isadmissible, its decision and the text of all relevant documents shall besubmitted as soon as possible to the state party, which shall submit awritten explanation or statement to the Commission within threemonths (Rule 119). After considering the communication in the lightof all information that the individual and the state has submitted inwriting, the observations of the Commission shall be communicated tothe Assembly of Heads and State and Government and to the state party(Rule 120).

In 1994, the Commission initiated a practice of inviting the representa-tives of the parties to its ordinary sessions. At such sessions, theparties may submit additional information on the case, including oralarguments. Individuals have been allowed to be represented by NGOs.253

251 Chidi AnselmOdinkalu and Camilla Christensen, ‘The African Commission onHumanand Peoples’ Rights: The Development of its Non-State Communication Procedures’,20 HRQ (1998), p. 255.

252 Eleventh Annual Activity Report of the African Commission on Human and Peoples’ Rights,1997–1998, Twelfth Annual Activity Report, 1998–1999, Thirteenth Annual Activity Report,1999–2000, Fourteenth Annual Activity Report 2000–2001, Fifteenth Annual Activity Report,2001–2002, Sixteenth Annual Activity Report, 2002–2003.

253 Odinkalu and Christensen, The African Commission on Human and Peoples’ Rights, p. 273.The fact that the parties are represented before the Commission is also clear from itsreports: see, e.g., Communications No. 140/94, 141/94, 145/95, Constitutional RightsProject, Civil Liberties Organisation and Media Rights Agenda v. Nigeria, paras. 13–14, inThirteenth Annual Activity Report, 1999–2000.


The Charter also outlines a procedure to be employed by theCommission with respect to non-state communications which ‘appa-rently relate to special cases which reveal the existence of a series ofserious or massive violations of human and peoples’ rights’ (Article 58).In such a situation, the Commission shall draw the case to the attentionof the Assembly, which may request the Commission to undertake anin-depth study and make a factual report, accompanied by its findingand recommendations.

According to Article 59 of the Charter, all measures taken under thechapter on non-state communications remain confidential until theAssembly of Heads of State and Government decides otherwise, andthe reports of the Commission are published upon the decision of theAssembly. Rule 106 states that the sessions of the Commission duringwhich communications are considered shall be private. The principle ofconfidentiality was much discussed during previous years, as theexpression ‘all measures taken’ in Article 59 was interpreted by theCommission as meaning that it could not disclose the names of statesagainst which complaints had been filed or mention the status ofcases pending before it.254 However, this problem has been solved.A workshop organised by the International Commission of Jurists priorto the Commission’s session in 1993 concluded that the provision ofconfidentiality did not prohibit making the proceedings and the juris-prudence of the Commission known. Sixty NGO representatives and sixCommissioners participated in the meeting.255 In the Commission’sSeventh Activity Report from 1994, the cases considered were for thefirst time cited with a short summary of the facts and the recommen-dations of the Commission.256 The Commission has continued its prac-tice of publishing the reports, which are now elaborate and includeinformation on both the admissibility and merits stages of theproceedings.

The Commission’s Activity Reports from 1997 to 2003 contain forty-eight case reports. In twenty-eight of the cases, the communications hadbeen filed by one or several NGOs.257 It is thus obvious that NGOs play a

254 Ankumah, The African Commission, pp. 38–39.255 International Commission of Jurists, The Participation of Non-Governmental Organizations

in the Work of the African Commission on Human and Peoples’ Rights: A Compilation of BasicDocuments, October 1991–March 1996, p. 34.

256 Seventh Activity Report of the African Commission on Human and Peoples’ Rights, 1993–1994.257 Eleventh Annual Activity Report of the African Commission on Human and Peoples’ Rights,

1997–1998, Twelfth Annual Activity Report, 1998–1999, Thirteenth Annual Activity Report,


central role in the individual communications procedure. Some NGOsappear as petitioners in many cases. Examples of NGOs which havelodged several communications include the Nigerian organisationsConstitutional Rights Project and Civil Liberties Organisation (CLO)and the British organisation Interights. Other non-African NGOs thathave instituted cases before the African Commission includeInternational Pen, Amnesty International, and Rights International.The locus standi of these NGOswas not questioned by the Commission.258

It appears that when filing a communication with the AfricanCommission, there are both advantages and disadvantages for NGOs incomparison with other complainants. When authors of communicationshave neglected to communicate with or respond to the Commission, theCommission has sometimes treated this as evidence of withdrawal,depending on the facts of the case. This has been the case especiallywhen the author has been an independent NGO. In its decision in thecase of Henry Kalenga v. Zambia, the Commission stated that: ‘Where thecomplainant is an individual, theCommission cannot automatically inter-pret silence as withdrawal of the communication, because individuals arehighly vulnerable to circumstances that might prevent them from con-tinuing to prosecute a communication.’259 This is, of course, an under-standable explanation to the differences in the Commission’s practice.260

1999–2000, Fourteenth Annual Activity Report 2000–2001, Fifteenth Annual Activity Report,2001–2002, Sixteenth Annual Activity Report, 2002–2003.

258 See, e.g., Twelfth Annual Activity Report of the African Commission on Human and Peoples’Rights, 1998–1999, Communications Nos. 137/94, 139/94, 154/96, 161/97, InternationalPen, Constitutional Rights Project and Interights on behalf of Ken Saro-Wiwa Jr and Civil LibertiesOrganisation v. Nigeria and No. 212/98, Amnesty International v. Zambia.

259 Seventh Annual Activity Report of the African Commission on Human and Peoples’ Rights,1993–1994, Communication No. 11/88, Henry Kalenga v. Zambia and Odinkalu andChristensen, The African Commission, pp. 247–248.

260 On the other hand, Odinkalu and Christensen assert that NGOs which are well knownto the Commission seem to have an advantage over political parties. In its decision onCommunication 63/93, submitted by the Congress for the Second Republic of Malawi v.Malawi, the Commission declared the communication inadmissible on the groundsthat it was of a general nature and did not as such disclose a prima facie violation of theCharter. During the same session, three other communications were declaredadmissible as they gave evidence of several serious or massive violations of humanrights in Malawi. One of these communications was in the form of a report submittedby Amnesty International. The only apparent difference between the communicationswas that one of themwas submitted by a political party and the other by a well-knowninternational NGO. Eighth Annual Activity Report of the African Commission on Human andPeoples’ Rights, 1994–1995, Communications No. 63/93, Second Republic of Malawi v.Malawi, Nos. 68/92 and 78/92, Amnesty International v. Malawi and Odinkalu andChristensen, The African Commission, pp. 253–254.


The nature of the cases examined by the Commission resemble thoselodged within the Inter-American system. The facts alleged often con-cern serious human rights violations and the Commission appears tofind violations of the Charter in the vastmajority of the cases examined.This may be an explanation as to why NGOs play such a dominant rolewithin the complaints system. As with the Inter-American Commissionon Human Rights, which also employs generous locus standi rules, thesystem seems to depend on NGOs for its proper functioning.

The African Court

The idea of an African Court was raised during the initial discussions onthe African Charter. An additional Protocol to the African Charter estab-lishing an African Court on Human and Peoples’ Rights was adopted bythe OAU Council of Ministers in June 1998. The Protocol entered intoforce in January 2004, but the Court is not yet (as of November 2004) inoperation.

According to Article 5(1) of the Protocol, only the Commission, stateparties and ‘African Intergovernmental Organizations’ have directaccess to the Court. Nevertheless, Article 5(3) provides that the Courtmay entitle ‘relevant Non Governmental Organizations (NGOs) withobserver status before the Commission, and individuals, to institutecases directly before it’. The possibility for individuals and NGOs to filepetitions under this provision is conditional. According to Article 34(6),the Courtmay not receive a petition involving a state party which has notmade a declaration accepting the competence of the Court to receivecases under Article 5(3). The state parties to the Protocol undertake,according to Article 30, to comply with the judgements of the Court.261

The Aarhus Convention procedure for individual communications

The Aarhus Convention on Access to Information, Public Participationin Decision-Making and Access to Justice in Environmental Matters hasbeen described earlier in this book.262 The Convention is open for statesmembers of the Economic Commission for Europe and for states havingconsultative status with this organisation. As of August 2004, twenty-nine states were parties to the treaty.263

261 For further information on the Court and NGO access to it, see Nsongurua J.Udombana, ‘Toward the African Court on Human and Peoples’ Rights: Better LateThan Never’, 3 Yale Human Rights & Development Law Journal (2000), pp. 45–111.

262 See section 4.2. 263 See http://www.unece.org/env/pp/ctreaty.htm.


Article 15 of the Convention requires the Meeting of the Parties,which is the primary policy-making body of the Aarhus Convention,to establish arrangements for reviewing compliance with theConvention. In October 2002 the parties adopted a Decision on Review of

Compliance and elected the first Compliance Committee, which has eightmembers elected in their personal capacity.264 According to the deci-sion, the Committee shall consider submissions by state parties, refer-rals by the secretariat and ‘communications . . . brought before theCommittee by one or more members of the public concerning thatParty’s compliance with the Convention, unless that Party has notifiedthe Depositary . . . that it is unable to accept . . . the consideration ofsuch communications by the Committee’.265 The ComplianceCommittee has made it clear that any natural or legal person maysubmit a communication to the Committee and that communicationsmay be filed by NGOs, including environmental or human rights NGOs.The communicant is not required to be a citizen of or, in the case of anorganisation, based in the state party concerned.266 Communicationsmay concern a person’s rights under the Convention (such as the rightto access to justice under Article 9). However, the Committee hasstressed that the compliance procedure is designed to improve compli-ance with the Convention and is not a redress procedure for violationsof individual rights.267

Communications should fulfil certain formal criteria. For instance,the Committee will not consider communications that are anonymousor manifestly unreasonable. Although there is not a strict requirementthat all domestic remedies must be exhausted, the Committee maydecide not to pursue the substance of a communication if it considersthat the communicant has not sufficiently explored the possibilities forresolving the issue through national administrative or judicial reviewprocedures.268 Once the Committee has determined that a communica-tion is admissible, it shall take into account all written informationmade available to it, and may hold hearings. In line with the overall

264 ECE/MP.PP/2/Add.8, Report of the First Meeting of the Parties, Addendum, Decision I/7, Review ofCompliance, 2 April 2004.

265 Ibid., para. 18.266 Aarhus Convention Compliance Committee, Fact Sheet on Communications from Members

of the Public, Version 1.2, 26 January 2004, p. 3.267 Ibid. p. 1.268 ECE/MP.PP/2/Add.8, Report of the First Meeting of the Parties, Addendum, Decision I/7, Review of

Compliance, 2 April 2004, paras. 20–21.


purposes of the Convention, the decision on the ComplianceCommittee and procedures for the review of compliance expresslystates that ‘no information held by the Committee shall be keptconfidential’.269

If the Committee determines that the state party concerned is or hasbeen failing to comply with the Convention, it will consider whatmeasures would be appropriate. The measures that the Committeecan suggest to remedy a situation of non-compliance include, inter alia,to provide advice and facilitate assistance to the party concerned regard-ing its implementation of the Convention, make recommendations,issue declarations of non-compliance, issue cautions and/or suspendthe special rights and privileges accorded to the party concernedunder the Convention. The final conclusions are communicated to theparty and the communicant. Information concerning the considerationof individual communications is also included in the reports on themeetings of the Compliance Committee.270

So far, five communications have been submitted to the ComplianceCommittee.271 None of them has been considered on the merits, but allhave been determined as admissible. All five communications weresubmitted by NGOs, or what seem to be NGOs. A couple of the submis-sions show that the Communication procedure under the AarhusConvention may become an important way to attract internationalattention not only to particular procedures and decisions in environ-mental matters, but also more generally to the conditions for NGOs toexist and act in the Convention states.

Communication no. 1 was submitted by the NGO Green Salvation against

Kazakhstan. The communicant alleged that its right to information was violated

whena request for information to theNationalAtomicCompanywasnot answered.

It was also alleged that subsequent appeal procedures in several courts failed to

meet the requirements of Article 9.1 on access to justice. According to the commu-

nication, the lawsuits were rejected, inter alia, on procedural grounds as the courts

did not acknowledge the right of anNGO to file a suit in its ownname rather than as

an authorised representative of its members. The Committee determined that the

communication was admissible.272

In Communication no. 5, BIOTICA Ecological Society v. Turkmenistan, the commu-

nicant alleged that by introducing a new regime for registration, operation and

269 Ibid., para. 26. See, however, also the exception in para. 27. 270 Ibid., paras. 35, 37.271 As of August 2004. The list is available at the Committee’s website, accessible online at

http://www.unece.org/env/pp/pubcom.htm.272 Communication ACCC/C/2004/01, Datasheet, last updated 19 May 2004.


liquidation of NGOs through the adoption of the Law on Public Associations in

November 2003, Turkmenistan was in breach of Article 3.4 of the Convention,

which requires it to provide for appropriate recognition of and support to

associations, organisations or groups promoting environmental protection

and to ensure that its national legal system is consistent with this obligation.

The communication was determined as admissible by the Committee.273

The findings of the Compliance Committee in these and other cases willsurely provide important material for analysis of the internationalrights and status of NGOs. Even if the Convention concerns publicparticipation and access to justice and information in environmentalmatters, it may indicate possible developments of the role of NGOs alsoin other areas of law.

One of the communicants under the Aarhus Convention procedurepreviously tried to file a submissionwith the ImplementationCommitteeestablished under the Convention on Environmental Impact Assessmentin a Transboundary Context (Espoo Convention, 1991). Although thatCommittee acknowledged receipt of the information, the majorityagreed not to consider it on the grounds that unsolicited informationfrom NGOs and the public relating to specific cases of non-compliancewas notwithin the Committee’smandate. Aminority disagreed, interpret-ing the Committee’s mandate to mean that there were no restrictions onhow the Committee became aware of a case of possible non-compliance,preferring to examine the information further.274

The citizen submission procedure under the North American Agreementon Environmental Cooperation

The North American Agreement on Environmental Cooperation (NAAEC)is one of two side agreements to the North American Free TradeAgreement (NAFTA). Developed to support the environmental provisionsof NAFTA, it was signed by Canada, Mexico and the United States andcame into force in 1994. According to Article 1, the objectives of theagreement are, inter alia, to promote sustainable development, enhancecompliancewith and enforcement of environmental laws and regulationsand to promote transparency andpublic participation in the development

273 Ibid.274 MP.EIA/WG.1/2004/4, Economic Commission for Europe, Meeting of the Parties to the

Convention on Environmental Impact Assessment in a Transboundary Context, Reportof the Fifth Meeting of the Implementation Committee, 8 April 2004, paras. 5–7. See alsoCommunication No. 3 to the Aarhus Compliance Committee, ACCC/C/2004/03,Datasheet, last updated 19 May 2004.


of environmental laws, regulations and policies.275 The Agreement doesnot specify any particular level of environmental protection, but requiresonly that the state parties shall enforce the legislation they have.276

The signing of NAFTA gave rise to a great deal of public criticism. Oneconcern was that the United States and Canada would lower the levelof their environmental enforcement standards in order to minimiseproduction costs, protect employment levels and their economies ingeneral, thereby creating a ‘race to the bottom’ of environmentalstandards.277 This was an important reason for the adoption ofNAAEC, which has been described as ‘the price of passage of NAFTAthrough the US Congress . . . intended to prevent the environmentfrom bearing the costs of increased trade among the three signatorycountries’.278 The public controversy concerning NAFTA was probablyalso an important explanation of the creation under NAAEC of theso-called ‘citizen submission procedure’, which is a procedure forcomplaints from private parties.279 The other NAFTA side agreement,the North American Agreement on Labor Cooperation, sets up anothersubmission process, although of a weaker nature.280

275 North American Agreement on Environmental Cooperation Between the Governmentof Canada, the Government of the United Mexican States and the Government of theUnited States of America, 1993, Articles 1(b), (g), (h).

276 Article 3 of the NAAEC states: ‘Recognizing the right of each Party to establish its ownlevels of domestic environmental protection and environmental development policiesandpriorities, and to adopt ormodify accordingly its environmental laws and regulations,each Party shall ensure that its laws and regulations provide for high levels of environ-mental protection and shall strive to continue to improve those laws and regulations.’

277 Beatriz Bugeda, ‘Is NAFTA Up to its Green Expectations? Effective Law Enforcementunder the North American Agreement on Environmental Cooperation’, 32 University ofRichmond Law Review (1999), p. 1592.

278 David L.Markell, Director, Submissions on EnforcementMatters Unit, Commission forEnvironmental Cooperation, in ‘The Commission for Environmental Cooperation’sCitizen Submission Process’, 12 Georgetown International Environmental Law Review,Spring (2000), p. 547.

279 Raymond MacCallum, ‘Evaluating the Citizen Submission Procedure under the NorthAmerican Agreement on Environmental Cooperation’, 8 Colorado Journal of InternationalEnvironmental Law and Policy (1997), pp. 395–396. For a detailed description on thepolitical background to NAAEC in the United States, see Jack I. Garvey, ‘Trade Law andQuality of Life – Dispute Settlement under the NAFTA Side Accords on Labour and theEnvironment’, 89 AJIL (1995) pp. 439–453.

280 For more information on that procedure, see Garvey, ‘Trade Law and Quality of Life’,pp. 439–453 and A. L. C. De Mestral, ‘The Significance of the NAFTA Side Agreementson Environmental and Labour Cooperation’, 15 Arizona Journal of International andComparative Law (1998), pp. 169–185.


The Commission for Environmental Cooperation is established underNAAEC to oversee implementation of the agreement and monitor theabilities of the parties to meet the obligations.281 The Commission iscomposed of three bodies: the Council, the Joint Public AdvisoryCommittee ( JPAC) and the Secretariat. The Council is the governingbody of the Commission and is composed of the environmentministers,or the equivalent, of the state parties. It is authorised directly under theNAAEC to ‘seek the advice of non-governmental organizations orpersons, including independent experts’.282 The JPAC is composed offifteen members, five from each of the three member countries. Themembers are appointed by their respective governments, but act inde-pendently. The Committee labels itself a ‘public, nongovernmentaladvisory group’.283 The Committee’s Rules of Procedure state that theCommittee may provide advice to the Council on any matter within thescope of the Agreement.284

The Commission for Environmental Cooperation also has a quasi-judicial function. According to Article 14 of NAAEC, individuals orNGOs may make submissions on enforcement matters to theSecretariat of the Commission. Article 14(1) reads:

The Secretariat may consider a submission from any non-governmental organ-ization or person asserting that a Party is failing to effectively enforce itsenvironmental law, if the Secretariat finds that the submission:

(a) is in writing in a language designated by that Party in a notification tothe Secretariat;

(b) clearly identifies the person or organization making the submission;(c) provides sufficient information to allow the Secretariat to review the

submission, including any documentary evidence on which the sub-mission may be based;

(d) appears to be aimed at promoting enforcement rather than at haras-sing industry;

(e) indicates that the matter has been communicated in writing to therelevant authorities of the Party and indicates the Party’s response, ifany; and

(f) is filed by a person or organization residing or established in theterritory of a Party.

281 The role and structure of the Commission are clarified in Part Three of NAAEC.282 NAAEC, Article 9(5)b.283 North American Commission for Environmental Cooperation, Joint Public Advisory

Committee, Public Consultation Guidelines (Preamble).284 Commission for Environmental Cooperation, Joint Public Advisory Committee, Rules of

Procedure, Rule 5(1).


According to the first sentence of the Article, submissions may only beconsidered if they have been made by ‘any nongovernmental organiza-tion or person’. Article 45(1) of NAAEC defines ‘nongovernmental orga-nization’ as ‘any scientific, professional, business, non-profit, or publicinterest organization or association which is neither affiliated with, norunder the direction of, a government’. In addition, Article 14(1) requires(i) that submissions concern environmental law(s), (ii) failure to effec-tively enforce such law(s) and (iii) that such omissions are of an ongoingnature.285 The first requirement excludes some international instru-ments, such as the 1986 Agreement between the United States andCanada Concerning the Transboundary Movement of HazardousWaste.286 The requirement of ‘enforcement’ means that a submissionwhich challenges a law as such or which concerns the adoption of newlegislation that lowers the standards as compared with previous environ-mental law will be dismissed by the Secretariat.287 Finally, the temporalrequirement excludes submissions concerning failures relating to lawswhich are no longer in force.288

Seemingly, the Article 14 procedure (also called the ‘citizen submis-sion procedure’) does not require any connection between the submit-ter and an actual damage suffered through lack of law enforcement. Inthat respect, it appears to resemble the collective complaints procedureestablished under the Additional Protocol to the European SocialCharter, which establishes the right to submit complaints regarding

285 NAAEC Article 45(2)a defines ‘environmental law’ as ‘any statute or regulation of aParty, or provision thereof, the primary purpose of which is the protection of theenvironment, or the prevention of a danger to human life or health, through (i) theprevention, abatement or control of the release, discharge, or emission of pollutantsor environmental contaminants’. See also Article 5 of the Guidelines for Submissions,in Council Resolution 99–06, Adoption of the Revised Guidelines for Submissions onEnforcement Matters Under Articles 14 and 15 of the North American Agreement onEnvironmental Cooperation, Banff, 28 June 1999.

286 TIAS No. 11099.287 See also Article 3 of NAAEC. In the case of Spotted Owl, the Secretariat concluded: ‘The

enactment of legislation which specifically alters the operation of pre-existingenvironmental law in essence becomes a part of the greater body of environmentallaws and statutes on the books. This is true even if pre-existing law is not amended orrescinded and the new legislation is limited in time. The Secretariat therefore cannotcharacterize the application of a new legal regime as a failure to enforce an old one.’Submission SEM-95–001, Secretariat’s Determination under Article 14(2), 21 September1995, Section V.

288 The Commission’s practice as regards the different requirements is explained inMarkell, ‘The Commission for Environmental Cooperation’s Citizen SubmissionProcess’, pp. 551 ff.


‘unsatisfactory application of the Charter’.289 However, the Secretariat’sdetermination of whether a submission merits a response from thestate party in question is based on whether the submission allegesharm to the person or organisation making the submission, as well ason several other factors. Article 14(2) of NAAEC provides that theSecretariat shall be guided by whether:

* the submission alleges harm to the person or organisation making thesubmission;

* the submission, alone or in combinationwith other submissions, raisesmatters whose further study in this process would advance the goals ofthis Agreement,

* private remedies available under the Party’s law have been pursued; and* the submission is drawn exclusively from mass media reports.290

In order for the Secretariat to request a response from the state partyconcerned, the submission should fulfil the conditions in Article14(2).291 The criteria are, however, not absolute, but are to be weigheddepending on the particular situation.292

The question of ‘harm’ to the person or organisation making thesubmission was discussed by the Secretariat with regard to the Cozumel

Submission (see below). The submitters did not claim that any actualharm had occurred, and the government objected that the submitters

289 Additional Protocol to the European Social Charter Providing for a Systemof CollectiveComplaints, 1995, Article 1. See also section 5.3.

290 The Guidelines for submissions specify these factors. For instance, it is stated in theGuidelines that in determining whether a submission is aimed at promoting enforce-ment rather than harassing industry, the Secretariat will take into account whether ornot ‘the submission is focused on the acts or omissions of a Party rather than oncompliance by a particular company or business; especially if the Submitter is acompetitor that may stand to benefit economically from the submission’ and ‘thesubmission appears frivolous’. Guidelines for Submission of Enforcement Matters, attachedto Council Resolution 99–06, 28 June 1999, Article 5.4.

291 The proceduremay also be terminated by the Secretariat at a later stage if the situationconcerning one of the Article 14 factors has changed during the time of the procedure:see, e.g., the submission Oldman River I, SEM-96–003, Determination pursuant to Articles 14& 15 of the North American Agreement on Environmental Cooperation, 2 April 1997.

292 Regarding the submission Great Lakes, the Secretariat stated that: ‘In deciding whetherto request a response from a Party, the Secretariat is to be guided by the four factorslisted in Article 14(2). Thus, during this phase of the process the Secretariatmay assignweight to each factor as it deems appropriate in the context of a particularsubmission.’ Secretariat of the Commission for Environmental Cooperation,SEM-98–003, Determination pursuant to Article 14(1) and (2) of the North AmericanAgreement on Environmental Cooperation, 8 September 1999, Section III B.


had failed to establish the necessary relationship between damage andfailure to enforce environmental legislation.293 The Secretariat stated:

In considering harm, the Secretariat notes the importance and character of theresource in question – a portion of themagnificent Paradise coral reef located inthe Caribbeanwaters of Quintana Roo.While the Secretariat recognizes that thesubmittersmay not have alleged the particularized, individual harm required toacquire legal standing to bring suit in some civil proceedings in North America,the especially public nature ofmarine resources bring the submitters within thespirit and intent of Article 14 of the NAAEC.294

So far, the Secretariat has not discontinued the processing of any sub-mission with reference to the ‘harm’ criterion.295

Proceedings may also be discontinued under Article 14(3), whichprovides that the state party concerned by a submission shall informthe Secretariat as to whether the matter is or has been the subject ofpending national proceedings, and whether private remedies in rela-tion to the matter are available to the submitter and whether they havebeen pursued.

If the Secretariat considers that the submission, in the light of anyresponse provided by the state party, warrants further action, it shallinform the Council and provide its reasons. The Council decides by a two-thirds vote if the Secretariat shall prepare a so-called ‘factual record’,which is a report prepared on the basis of ‘any relevant technical, scien-tific or other information’. The Secretariat submits a draft factual recordto the Council, and state parties may provide comments on the accuracyof the draft within forty-five days. After incorporating such comments, asappropriate, in the final factual record, it is submitted to the Council. Afinal factual record contains a summary of the submission and of theresponse by the concerned party, as well as of any other relevant factualinformation. The factual record also includes the facts presented by theSecretariat with respect to the matters raised in the submission, but itdoes not contain any conclusions as to whether the state party has

293 Final Factual Record of the Cruise Ship Pier Project in Cozumel, Quintana Roo, Prepared inAccordance with Article 15 of the North American Agreement on EnvironmentalCooperation, Commission for Environmental Cooperation 1997, pp. 3–7.

294 SEM-96–001, Recommendation of the Secretariat to Council for the Development of a FactualRecord in accordance with Articles 14 & 15 of the North American Agreement on EnvironmentalCooperation, 7 June 1996. See also Markell, ‘The Commission for EnvironmentalCooperation’s Citizen Submission Process’, p. 560.

295 The proceedings concerning three cases have been discontinued under Article 14(2):SEM-95–001; SEM-95–002; SEM-96–002 (as of August 2004).


actually failed to enforce its environmental law.296 The Council decideswhether the final factual record should be made publicly available.297

Since the establishment of the procedure for submissions on enforce-ment matters until October 2001, the Secretariat of the Commission onEnvironmental Cooperation had received a total of forty-four submis-sions, but only nine final factual records had been prepared.298 Severalsubmissions have been dismissed under Article 14(1), often with refer-ence to failure tomeet the criterion of ‘asserting that a Party is failing toeffectively enforce its environmental law’.299 In other cases, theSecretariat has not recommended, or the Council has decided not torequest the preparation of a factual record.300 It can be observed that nosubmission has been dismissed with reference to failure to meet thecriterion ‘from any non-governmental organization or person’.

Of the forty-four submissions which have been made so far, twenty-five were filed by (non-commercial) NGOs and three by business cor-porations.301 The other submissions were made by private individualsor by a person or entity whose identity was withheld. Some NGOs havefiledmore than one submission.302 Several submissions were submittedjointly by large groups of NGOs.303

A brief description of two cases which have led to the adoption of afinal factual record might shed some light on the procedure and theissues involved.

The first final factual record to be prepared and made public concerned the

construction of a cruise ship pier in the Mexican island of Cozumel in

296 Guidelines for Submission of Enforcement Matters, Article 12.297 North American Agreement on Environmental Cooperation, Article 15.298 The Registry and Public File of Submission is accessible online at the Commission’s

website at www.cec.org, as of August 2004. All the final factual records have beenmade public.

299 See, e.g., SEM-97–004; SEM-97–005; SEM-98–001; SEM-98–002; SEM-00–003; SEM-01–002.300 See, e.g., SEM-98–003; SEM-98–005; SEM-01–001; SEM-03–001.301 NGOs made the submissions SEM-95–001–002; SEM-96–001; SEM-96–003–004;

SEM-97–001–007; SEM-98–001; SEM-98–003–007; SEM-99–002; SEM-00–003–004;SEM-01–001; SEM-01–003; SEM-03–001; SEM-03–002. The submissions SEM 99–001;SEM-00–002; SEM-01–003 were made by corporations.

302 For instance, Academia Sonorense de Derechos Humanos AC submitted SEM-98–005(Cytrar); SEM-00–005 (Molymex II) and SEM-01–001 (Cytrar II); Sierra Club of BritishColumbia SEM-98–004 (BC Mining) and SEM-00–004 (BC Logging); and Instituto deDerecho Ambiental and SEM-97–007 (Lake Chapala); SEM-98–001 (Guadalajara);SEM-99–002 (Migratory Birds).

303 For example SEM-95–002 (Logging Rider); SEM-97–003 (Quebec Hog Farms, whichwas filedby a group of nineteen NGOs); SEM-99–002 (Migratory Birds).


the Caribbean sea.304 The submission was presented in January 1996 by the

NGOs the Committee for the Protection of Natural Resources, the International

Group of One Hundred and the Mexican Center for Environmental Law. The

NGOs alleged ‘failure on the part of Mexican authorities to enforce their envir-

onmental law effectively with regard to the totality of the works of the ‘‘port

terminal project in Playa Paraıso, Cozumel, Quintana Roo’’’. The submitters

argued, inter alia, that the project, as it was planned, failed to comply effectively

with Mexican legislation, since the Consortium would not have to present a

comprehensive Environmental Impact Statement regarding all works that

made up the project.305 The Mexican government responded with a number of

arguments of procedural and material nature. As regards the submitters, the

government argued that they had ‘failed to provide reliable evidence demon-

strating the character of the organizations they say they represent, since they

did not supply any information regarding the incorporation particulars of the

civil associations they purport to represent nor did they provide the by-laws of

such associations’.306 The government denied that it had failed to enforce its

environmental legislation on the ground, inter alia, that since construction had

not begun, the submitters demanded an Environmental Impact Report for

works that had not yet been authorised.307 The draft factual record was pre-

sented to the Council in April 1997. By July, the members of the Council had

presented their comments on the draft. The Secretariat submitted the final

factual record to the Council, which made the record public in October 1997.

Reading this first factual record is a rather disappointing experience. Itis, as is clear already from its designation, a very thorough presentationof facts, as submitted by the NGOs and the government, together withrelevant information gathered from other sources by the Secretariatitself. It does not include any conclusions whatsoever as to what thefacts mean in terms of whether Mexico had failed to effectively enforceits environmental legislation or not. The arguments of the Mexicangovernment as regarded the failure of the submitters to present evi-dence demonstrating the character of the organisation itself and whomit representedwere not addressed by the Secretariat.308 The conclusions

304 Final Factual Record of the Cruise Ship Pier Project in Cozumel, Quintana Roo, Prepared inAccordance with Article 15 of the North American Agreement on EnvironmentalCooperation, Commission for Environmental Cooperation 1997.

305 Ibid., pp. 3–4. 306 Ibid., p. 7. 307 Ibid., pp. 8–12.308 The decision that the organisation met the criteria in Article 14, taken at a previous

stage in the procedure, was discussed by the Secretariat in its Recommendation of theSecretariat to Council for the Development of a Factual Record in accordance with Articles 14 & 15of the North American Agreement on Environmental Cooperation, SEM-96–001, 7 June 1996.The recommendation mentions the government’s views on this point, but theSecretariat notes only that: ‘The Secretariat concluded that the submitters compliedwith the requirements of Article 14(1).’


are left entirely to the reader, and considering the vast amount ofinformation presented, they are not easily reached. Beatriz Bugeda,former Head of the Mexico Liaison Office of the Commission forEnvironmental Cooperation, has commented as follows on the reactionto and effect of the Cozumel case:

When the submission was presented, and particularly when the Secretariatrequested a response from the Mexican government, it captured the attentionof themedia in the three countries . . . The submissionwas presented in Januaryof 1996, and almost two years passed before the final Cozumel Factual Recordwas released to the public on October of 1997. By then, the initial interest ofenvironmental groups and themedia had all but vanished. Very few newspapersin North America covered the release of the report or the reaction by the partiesinvolved. In Mexico, it practically went unnoticed . . . The submitters held apress conference and distributed a document with their interpretation of theCozumel Factual Record, alleging that ‘it proved failure by the part of theMexican environmental authorities to effectively enforce environmental law’.On the other hand, some Mexican officials have said off-the-record that theyare ‘pleased’ with the Cozumel Factual Record because they believe that, even ifit reaches no conclusions, it supports their position. Meanwhile, the JPAC hassaid nothing, and the Council remains silent to this day. For the CEC[Commission on Environmental Cooperation], with the release of the CozumelFactual Record, the process is terminated . . . The truth is that the procedure hadvery little impact on the environmental community, and none whatsoeveron the tourist project in Cozumel that led to the submission. The fact that therecord does not provide any judgement or evaluation regarding the allegationsmade by the submitters might have disappointed the public. Indeed, theefficiency of the procedure was compromised as the political momentumfaded during the long process.309

The second final factual record to be prepared and made public con-cerned SEM-97–001, BC Hydro, filed by several NGOs against Canada.310

The submitters alleged that the Canadian government was failing toenforce parts of its national legislation to ensure the protection of fishand fish habitat in British Columbia’s rivers from ongoing and repeatedenvironmental damage caused by hydro-electric dams. The record is lessneutral in its character and also more comprehensible since it includes

309 Bugeda, ‘Is NAFTAUp to its Green Expectations?’, pp. 1615–1616. See, however, AngelaD. Da Silva, ‘NAFTA and the Environmental Side Agreement: Dispute Resolution in theCozumel Port Terminal Controversy’, Environs Environmental Law and Policy Journal,1998, p. 61.

310 Factual Record for Submission SEM-97–001 (BC Aboriginal Fisheries Commission et al.), madepublic on 11 June 2000.


a summary, as opposed to the Cozumel record. Some findings presentedin the draft record are formulated in a way that could be regarded asrecommendations.311 This led to opposition from the state parties.According to NAAEC Article 15(5), any party may provide commentson the draft factual record within 45 days after it has been submitted bythe Secretariat to the Council. Article 45(6) states that the Secretariatshall incorporate, as appropriate, any such comments in the final fac-tual record and submit it to the Council. After the submission of thedraft factual record on the BC Hydro dispute, all three state partiessubmitted comments that clearly demonstrated their view that thecitizen’s submission procedure is of a purely fact-finding procedure.For instance, the US government stated that:

In this process the Secretariat has been given the important role of serving as aneutral and independent fact-finder. Consequently, it is important that theSecretariat refrain from offering comments in a factual record that appear toprovide the Secretariat’s own views about whether or not there has been effec-tive enforcement of the law with respect to the assertions in a particular sub-mission. In this regard, the US government is concerned with three portions ofthe draft factual record. The portion of the draft factual record of most concernto us is the last bullet of section 233. In that bullet the secretariat discusses thetools Canada would need to use under particular circumstances in order toeffectively enforce its law.312

It can be noted that the US government was sceptical even in the matterof the Secretariat’s discussion over which measures could be needed inorder for the law to be effectively enforced. The government recom-mended that some sections of the draft record should be modified in thefinal factual record. However, the Council instead instructed theSecretariat to make public the final factual record and to attach the com-ments sent by the Parties to the final factual record.313 Criticism of the

311 Ibid., for example paras. 141, 217, 233.312 Ibid., Comments from the Parties, Letter to the Executive Director of the Secretariat from

William A. Nitze, US Alternate Representative to the Council, May 11, 2000. The Mexicangovernment concluded in its comment that ‘it is clear that the Secretariat put proceduresinto practice that havenobasis’,Observations ofMexico on theDraft Factual Record, 8May2000.Canadawas less critical in its approach, noting that the recordwent beyond a compilationof facts, but also noting that the procedure was under review. Letter to the Secretariat fromMorine Smith, Assistant Deputy Minister, May 11, 2000.

313 Council Resolution 00–04, Instruction to the Secretariat of the Commission for EnvironmentalCooperation to make public the Factual Record Regarding the Assertion that Canada is failing toeffectively Enforce s. 35(1) of the Fisheries Act with Respect to Certain Hydro-Electric Installations inBritish Columbia, Canada, Dallas, 11 June 2000.


Secretariat has also been expressed in more recent cases. For instance, inthe BC Logging case, theCanadiangovernment observed that the Secretariatappeared to use language that reflected conclusions and provided com-mentary, and stated that this was ‘beyond the mandate of the Secretariatwhich is to set out facts in an objective and impartial manner’.314

In the perspective of the international legal status of NGOs, it is inter-esting that NGOs have been granted the possibility to make submissionson enforcement matters under NAAEC. It has been demonstrated abovethat NGOs are the most active actors under this procedure. However, thefacts that many submissions have been dismissed or their processingdiscontinued, and only nine have led to the preparation of a final factualrecord raise doubts as regards the effectiveness of the procedure.Moreover, since the final factual records do not contain any conclusions,they are not likely to have any real impact on the enforcement of envir-onmental legislation. It is evident that, if the citizen’s submission proced-ure has any importance, it lies on the political plane.

5.4 Conclusions

This chapter has dealt with the role of NGOs as parties before courts andquasi-judicial bodies, while chapter 6 will discuss their role as amicuscuriae. In addition to these two roles, NGOs often act as the representa-tive of private parties. The survey of international and regional proce-dures which provide NGOs with locus standi demonstrates that NGOshave an important role to play in many compliance mechanisms. Thenumber of procedures open to NGOs as parties is increasing. An impor-tant development in this regard was, of course, the coming into forceof the 9th Additional Protocol to the ECHR in 1990, which made itpossible for NGOs to refer cases that had first been considered bythe Commission to the European Court of Human Rights and, in 1998,the 11th Protocol, which gave direct access for NGOs and individuals tothe Court. As of yet, the European Court of Human Rights and the ECJare the only courts which are directly accessible to NGOs as parties (thelatter providing only limited access). However, when the African Courtof Justice comes into operation, NGOs will be able to institute casesthere too.

314 Factual Record, BC Logging Submission, SEM 00–004, p. 187 (Comment of Canada).The US government also stressed that a factual record should be limited to factualinformation, p. 205.


In addition to the quasi-judicial mechanisms within, for example, theInter-American and African human rights systems, where NGOs havealready played an important role as parties for some time, a number ofnewmechanisms have been established. These include the World BankInspection Panel, the Aarhus Convention procedure for individual com-munications and the citizen submission procedure concerning theNAAEC. Within the Council of Europe, the collective complaints proce-dure has been established, making it possible for NGOs to lodge com-plaints regarding alleged non-compliance with the European SocialCharter. Some of these procedures are open exclusively to NGOs, i.e.the ILO freedom of association procedures and the European CollectiveComplaints procedure. Although other mechanisms are accessible toboth individuals and groups and NGOs, it can be concluded that severalof these procedures depend on NGOs acting as parties. This is particu-larly the case with the mechanisms with generous locus standi rules,notably the Inter-American and the African systems.


6 Non-party participation before judicialand quasi-judicial bodies

6.1 Introduction

The international legal system can be seen as a set of bilateral con-sensual relationships within which rights and obligations are formu-lated and values allocated between the parties. There is a correlationbetween rights and duties, as in Hohfeld’s systematisation, althoughone and the same party may have the same claim or obligation towardsseveral parties. Such bilateralism brings order to the appearance of thelaw, not only because it identifies who is the holder of a right, but alsowho may enforce it.1 At the same time, international agreements anddisputes often affect the interests of third states, nations or groups, or ofthe international community as awhole. HermannMosler suggests that:

International law cannot be defined solely in terms of bilateral or multilateralrelations between subjects which possess legal capacity. The collection of sub-jects participating in the international legal order constitutes a communityliving according to common rules of conduct.2

Interests which affect actors other than the parties might be of manydifferent kinds – material interests in economic values or naturalresources, or more political interests in legal developments in onedirection or another, such as protection of the environment or respectof human rights standards.

The fact that the interests of many are affected by a bilateral andmultilateral legal relationship raises issues about whomay intervene or

1 See Christine Chinkin, Third Parties in International Law, Oxford: Clarendon Press, 1993,pp. 1–2.

2 Hermann Mosler, International Legal Community, in EPIL, 2, Amsterdam: North-Holland,1995, p. 1252. See also Chinkin, Third Parties in International Law, p. 5.

300

otherwise make submissions during international judicial proceedings.A very strict view on the right to intervention may hinder or delay adevelopment of the law in the direction of common interests, while apermissive practice may undermine the parties’ control over the dis-pute or cause extra costs and work for the court. The need to strike abalance between different interests calls for a variety of forms of parti-cipation in legal proceedings, ranging from full participation as a partyat one end of the scale to non-party contributions in the form of writtenor oral submissions at the other. The court as well as the parties and thepublic also has a common interest that the court should receive thefullest information possible on the matter before it.

Some basic distinctions between the different roles which NGOs mayhold before tribunals and quasi-judicial bodies need to be upheld. Themost basic distinction is the difference between parties, on the onehand, and ‘non-parties’ or ‘third parties’ on the other. ChristineChinkin, who prefers the latter term, stresses that there is no singledefinition which can be used for the identification of third parties, assuch identification depends on the context of the claim. Nevertheless,she explains that: ‘Third parties are those outside a bilateral relation-ship, whether formally created, for example by treaty or the commence-ment of proceedings, or occurring through events such as the outbreakof armed conflict.’3 Chinkin’s explanation is illustrative, although itshould be observed that her study on third parties covers not onlysituations before a tribunal, but also treaty relationships or inter-national legal relationships in general.4 Since NGOs are explicitlyexcluded from being a party before many international courts andbodies, notably the ICJ, the expression ‘non-party’ will be used herefor all cases of amicus curiae submissions. Moreover, some internationaljudicial bodies distinguish between the intervention of third parties andother types of participation.5

3 Chinkin, Third Parties in International Law, p. 7.4 See also D. J. Harris, M. O’Boyle and C. Warbrick, Law of the European Convention on HumanRights, London: Butterworths, 1995, pp. 668–671 and Donna Gomien, David Harris andLeo Zwaak, Law and Practice of the European Convention on Human Rights and the EuropeanSocial Charter, Strasbourg: Council of Europe Publishing, 1996, pp. 80–81. These authorsuse the expression ‘third-party intervention’ for the submission of amicus curiae briefs inaccordance with the Rules of the European Court of Human Rights, see section 6.5.

5 In November 2000, the WTO Appellate Body adopted an additional procedure to dealwith amicus curiae briefs. In the communication from the Appellate Body, it is stated that‘Any person, whether natural or legal, other than a party or a third party to this dispute’

NON -PARTY PART IC I PAT ION 301

Although the distinction between the participation of parties andnon-parties is made here, it is of interest to note that this distinction isnot entirely clear within all fields of law, especially regional humanrights law and environmental law. As was demonstrated in chapter 5 onthe standing of NGOs before different human rights supervisory bodies,both the Inter-American Commission on Human Rights and the AfricanCommission on Human and Peoples’ Rights employ permissive locusstandi rules in the sense that NGOs can file complaints concerning analleged human rights violation without any direct connection with thevictim. The existence of these types of procedures indicates that therespect for human rights standards is regarded as a public interestwithin these regional organisations, in line with Mosler’s reasoningon the international legal community. It also means that NGOs havethe possibility to choose between the role of a party and other avenuesfor advocating their interests before these regional bodies. TheEuropean Court of Human Rights, however, upholds the victim require-ment.6 Further, the rules on standing before the ECJ and CFI grant leaveto institute proceedings for judicial review only for actors who have adirect interest in the matter. In the case of Stichting Greenpeace Council v.the Commission the rules on locus standi were given a restrictive interpre-tation, even though it concerned environmental interests, whichmightwell be regarded as affecting a broad group of people.7

As has been described in chapter 5, NGOs often act as self-appointedadvocates of both individual and common interests in the capacity ofparties before international tribunals and quasi-judicial bodies. It willnow be demonstrated that NGOs also intervene rather frequently intribunal proceedings without having the standing of a party. There arethree main platforms for such interventions. The first one, amicus curiae

interventions, will be in the focus of this chapter as it is often (andseemingly to an increasing extent) used by NGOs. Secondly, NGOs mayappear as expert witnesses before courts and quasi-judicial bodies.Finally, NGOs sometimes appear as counsel of a party. This latter pos-sibility will be only briefly examined within the framework of thisstudy, as it is difficult in practice to distinguish cases where a personemployed by an NGO accepts to act as counsel in her or his personal

could file a written brief. WT/DS135/9, European Communities – Measures Affecting Asbestosand Asbestos-Containing Products, 8 November 2000.

6 See section 5.3.7 European Court of Justice, Stichting Greenpeace Council (Greenpeace International) and Othersv. Commission, Case C-321/95 P, Judgement of 2 April 1998. See also section 5.3.


capacity as lawyer or expert from cases where it is actually the organisa-tion that is appointed as counsel.

An amicus curiae is a person or an organisation with an interest in orviews on the subject matter of a case who, without being a party,petitions the court for permission to file a brief suggesting matters offact and/or law in order to suggest a rationale consistent with its ownviews.8 The interest of an amicus in the matter is often of a generalnature, such as the desire to promote public interests.9 Amici curiae arenot bound by the decision and can therefore relitigate issues if theoutcome is not favourable, and they are not limited to the issues pre-sented by the parties. These circumstances make the amicus positionfavourable to NGOs which might wish to participate on the basis of ageneral interest or in order to support a private person, such as thevictim of a human rights violation. On the other hand, amici cannotcontrol the direction of the action, they cannot offer evidence orexamine witnesses and they cannot be heard without special leaveof the court.10

While an amicus intervenes on proper initiative or on the initiative ofone of the parties, an expert is appointed by the court or by a party. Theexpert can make an oral or written statement on matters of which thecourt lacks sufficient knowledge.11

6.2 The World Court

The Statute of the ICJ admits non-party participation in the form ofsubmission of information on matters relevant in a case. According toArticle 34(2) of the Statute of the International Court of Justice, the Courtmay request and receive such information in contentious proceedingsonly from ‘public international organisations’.12 Information from publicinternational organisations shall also be received by the Court when it ispresented on an organisation’s own initiative. Article 69(4) of the Court’sRules of Procedure explains that the term ‘public international organiza-tion’ denotes an international organisation of states.13

In the Asylum case, the non-governmental International League for theRights of Man (now the International League for Human Rights),

8 Black’s Law Dictionary, Abridged 6th edn., St Paul, MN: West Publishing Co., 1991, p. 54.9 Dinah Shelton, ‘The Participation of Nongovernmental Organizations in InternationalJudicial Proceedings’, 88 AJIL (1994), p. 612.

10 Ibid., pp. 611–612. 11 Black’s Law Dictionary, p. 401. 12 Emphasis added.13 International Court of Justice, Rules of Court (1978), as Amended on 5 December 2000.


requested permission to submit written or oral statements.14 Amemberof the League’s Board of Directors wrote to the Court’s Registrar andrequested that the Court determine whether the League was a publicinternational organisation within the meaning of Article 34 of theStatute.15 The Court’s Registrar rejected the League’s participation in atelegram saying simply that the ‘Court finds Article 34 not applicablesince International League of Rights of Man cannot be characterized aspublic international organization as envisaged by Statute’.16 It is thusclear that NGOs have no possibility to intervene in the ICJ’s contentiousproceedings as independent actors. There is, however, the possibilitythat a government may file an amicus brief as part of its own submis-sions. This occurred in the case concerning the Gabcikovo-Nagymaros DamProject (1997), in which the Hungarian government submitted an amicus

brief prepared by the National Heritage Institute and the InternationalRiver Network.17

Article 66 regarding the Court’s right to hear non-parties during itsadvisory proceedings is less restrictive, as regards both states andorganisations. It can be assumed that it has been considered importantthat the Court receives as full information as possible if the advisoryopinion is to be respected by the international community. Moreover,there is no need in advisory proceedings to pay respect to party auto-nomy as in contentious cases.18 According to Article 66, the Court maydecide to notify ‘international organisations’ likely to be able to furnishrelevant information that the Court will be prepared to receive writtenstatements or to hear oral statements. The Rules of Procedure do

14 Asylum case (Colombia v. Peru), 1949–1950, judgement on the merits delivered on20 November 1950.

15 Letter from Robert Delson, Asylum case, 1950 ICJ Pleadings, II, 1950, p. 227. See alsoShelton, ‘The Participation of Nongovernmental Organizations’, p. 623 and NigelRodley, ‘Human Rights NGOs: Rights and Obligations’, in Theo Van Boven et al. (eds.),The Legitimacy of the United Nations: Towards an Enhanced Legal Status of Non-State Actors,Netherlands Institute of Human Rights, SIM Special, 19, Utrecht, 1997, p. 57.

16 Telegram from the Registrar, Asylum case, 1950 ICJ Pleadings, II, p. 228.17 Daniel Schacht and Lori Pottinger, ‘Devastating the Danube and Drave with Dams’,

World Rivers Review, January 1996 and ‘NHI’s Historic Involvement in TransboundaryWater Issues’, paper by theNatural Heritage Institute. The briefwas filed byHungary on20 June 1995.

18 See Chinkin, Third Parties in International Law, p. 229. An exception to this is, however,the situation where an instrument provides in advance that the ICJ’s advisory opinionshall be binding, as is the case with the ILO Tribunal, see Article XII (2) of the Statuteof the Administrative Tribunal of the International Labour Organization.


not include any explanation of the term ‘international organisations’as used in Article 66 of the Statute.19

Seemingly, the Court has never notified an NGO of the request for anadvisory opinion, but NGOs have on their own initiative asked for permis-sion to submit information as amici curiae.20 The International League forthe Rights ofMan is one example.When the President of the Court had setthe date for the receipt of written statements from states in the proceed-ings leading to the 1950 Advisory Opinion on the International Status of South-

West Africa, the same member of the League’s board who had requesteddetermination of the League’s status wrote to the Registrar of the Courtand asked permission for the League to participate by oral or writtenstatement in the proceedings.21 The Registrar responded in a letter tothe League that the Court was prepared to receive a written statement ofinformationwhichwas likely to assist theCourt in its examination of legalquestions. The Leaguewas instructed not to include any statement of factswhich the Court had not been asked to appreciate.22 However, because ofmistakes on the part of the League, notably the failure to submit itsstatement on time, the Court took no notice of the statement.23

The League later requested to intervene in the proceedings leading tothe 1971 Advisory Opinion on Namibia, referring to the permission it hadbeen granted in 1950 in the South-West Africa case.24 This time theLeaguewas refused, although the decision did not include any challengeof the legitimacy of the request.25 Several other organisations, such asthe OAU and the NGO American Committee on Africa, also asked forleave to make submissions along with individual petitioners fromNamibia, but all but the OAU were rejected.26 The permission grantedin 1950 to the League for the Rights of Man appears to be the only time

19 See, however, the Court’s Practice Directions, below.20 Chinkin, Third Parties in International Law, p. 230.21 International Status of South-West Africa, 1950 ICJ Pleadings, II, p. 324. See also Roger S.

Clark, ‘The International League for Human Rights and South West Africa 1947–1957:The Human Rights NGO as Catalyst in the International Legal Process’, 3 HRQ (1981),pp. 116–120; Shelton, ‘The Participation of Nongovernmental Organizations’, p. 623;Rodley, ‘Human Rights’, p. 57.

22 International Status of South-West Africa, 1950 ICJ Pleadings, II, p. 327.23 Ibid., p. 346. See also Clark, ‘The International League for Human Rights’, p. 118–119.24 Legal Consequences for States of the Continued Presence of South Africa in Namibia (South-West

Africa) Notwithstanding Security Council Resolution 276 (1970), 1972 ICJ Pleadings, II,pp. 639–640, 678.

25 Ibid., pp. 672, 679. See also Clark, ‘The International League for Human Rights’, p. 119.26 1970 ICJ Pleadings, II, pp. 649, 652, 672, 678.


the ICJ has been prepared to receive a statement from an NGO indepen-dently.27 Interestingly, the episode demonstrates that there is nothingto prevent the Court from admitting an NGO to file a statement.

There have been requests from NGOs for permission to submit state-ments in other advisory proceedings before the ICJ. In the AdvisoryProceedings of Legality of the Use by a State of Nuclear Weapons in Armed

Conflict, requested by the WHO, the Physicians for the Prevention ofNuclear War requested the ICJ for permission to submit information.Although the Court noted the physicians’ close working relationshipwith the WHO and their contribution to a relevant publication, itdecided not to grant leave for the organisation to submit a written ororal statement.28

Individuals have also sought leave to file statements with the Court.29

For example, during the Legal Consequences for States of the ContinuedPresence of South Africa in Namibia (South-West Africa) proceedings,Michael Reisman wrote to the Registrar asking about the ‘possibilitiesof submitting some form of amicus curiae brief’ to the Court. Reismanheld that amicus curiae briefs had been an institutionwhich had provideduseful information to courts and had, overall, ‘served as a means forintegrating and buttressing the authority and conflict-resolving capaci-ties of domestic tribunals’.30 In his reply, the Registrar went into thematter at some length, and referred to the expression ‘internationalorganization’ in Article 66(2) of the Statute and stating that the Articlewas ‘limitative and exclusive’. He asserted that the decision to grant theInternational League for the Rights of Man permission to submit a state-ment could not be regarded as a precedent for the participation of

27 Rodley, ‘Human Rights’, p. 57.28 Legality of the Use by a State of NuclearWeapons in Armed Conflict, Letter from the Registrar to

Dr Barry D. Levy, 28 March 1994, in Shelton, ‘The Participation of NongovernmentalOrganizations’, p. 624.

29 See, e.g., Letter from the Reverend Michael Scott to the Registrar, Legal Consequences forStates of the Continued Presence of South Africa in Namibia (South-West Africa) NotwithstandingSecurity Council Resolution 276 (1970), 1970 ICJ Pleadings, II, pp. 644–645 and theRegistrar’s reply, p. 647. A rather interesting attempt by individuals to intervene in thesame proceedings was made by a group of indigenous inhabitants of the territory ofSouth-West Africa. The group,which called itself the South-West AfricaNational UnitedFront (SWANUF), submitted an application to be heard as ‘petitioners’ by the Court.Since the request did not satisfy the conditions formulated in Article 66(2), it wasdenied by the Registrar, see pp. 677–678.

30 Letter from Professor Reisman to the Registrar, Legal Consequences for States of theContinued Presence of South Africa in Namibia (South-West Africa) Notwithstanding SecurityCouncil Resolution 276 (1970), 1970 ICJ Pleadings, II, pp. 636–637.


individuals and concluded that ‘the Courtwould be unwilling to open thefloodgates to what might be a vast amount of proffered assistance’.31

The PCIJ permitted participation of NGOs in several advisory pro-ceedings under Article 73 of its Rules.32 This was a practice whichevolved in cases concerning labour law involving the ILO. In its firstadvisory proceeding in 1922, concerning workers’ delegates to theInternational Labour Conference, the PCIJ permitted participation byany organisation that wished to be heard. Numerous trade unions filedstatements in the proceedings.33 International trade unions often par-ticipated in the Court’s advisory proceedings; in its Third Annual Reportthe PCIJ listed ten organisations permitted to submit information tothe Court, of which almost all were NGOs.34

In conclusion, it can be observed that the ICJ seems to have appliedArticle 34 of its Statute regarding the submission of information incontentious cases and Article 66 regarding advisory proceedings in thesameway, despite the fact that the former refers to ‘public internationalorganizations’ and the latter to ‘international organizations’. The onlyexception to this practice appears to have been the permission grantedin 1950 to the International League for the Rights of Man. ChristineChinkin has expressed the following critical view of this practice:

The Court’s attitude towards submissions from non-governmental sources is anexcessively restrictive one which denies to itself a potential source of informa-tion, and to non-governmental organizations any legitimate interest in impor-tant questions of international law. No exception is made for those bodies with

31 Letter from the Registrar to Professor Reisman, Legal Consequences for States of theContinued Presence of South Africa in Namibia (South-West Africa) Notwithstanding SecurityCouncil Resolution 276 (1970), 1970 ICJ Pleadings, II, pp. 638–639.

32 Article 73(1), para. 2 reads: ‘The Registrar shall also, by means of special and directcommunication, notify any . . . international organization considered by the Court aslikely to be able to furnish information on the question, that the Court will be preparedto receive . . . written statements, or to hear, at a public sitting to be held for thepurpose, oral statements related to the question.’

33 Advisory Opinion No. 1, Designation of the Workers’ Delegate for the Netherlands at the ThirdSession of the International Labour Conference, 1922 PCIJ Series C, No. 1, pp. 443, 446, 453,454, 456. See also Shelton, ‘The Participation of Nongovernmental Organizations’,pp. 622–623.

34 Third Annual Report of the PCIJ, 1927 PCIJ Series E, No. 3, p. 227. The organisationswerethe International Agricultural Commission, the IFTU, the ILO, the InternationalAssociation for Legal Protection of Workers, the International Confederation ofAgricultural Trades Unions, the International Federation of Landworkers, theInternational Institute of Agriculture, the International Federation of Christian TradesUnions of Landworkers, the International Organization of Industrial Employers and theInternational Confederation of Christian Trades Unions.


observer status before organs of the United Nations such as ECOSOC, or whichparticipate in human rights committees. Even in its advisory jurisdiction theCourt distinguishes itself from the political organs of the United Nations in itsextreme position with respect to non-governmental organizations.35

The most probable explanation to the ICJ’s restrictive practice withrespect to amicus briefs is the one which was given by the Registrar inhis letter to Reisman, i.e. that ‘the Court would be unwilling to open thefloodgates to what might be a vast amount of proffered assistance’.36

Another, possible, reason might be that the Court seeks to protect itsintegrity by avoiding every risk of bias. Considering that several otherinternational and regional courts employ a more generous approach toamicus curiae participation, as will be demonstrated below, it might beheld that the ICJ is unnecessarily cautious.37

However, the Court has recently recognised written statements sub-mitted by NGOs in connection with advisory proceedings as a source ofinformation.With the objective of increasing its productivity, the Courtfirst adopted Practice Directions in 2001 for the use of states appearingbefore it. In July 2004, it amended the Practice Directions and adoptednew Directions.38 Part XII of the new Directions states:

1. Where an international non-governmental organization submits awritten statement and/or document in an advisory opinion case on itsown initiative, such statement and/or document is not to be consideredas part of the case file.

2. Such statements and/or documents shall be treated as publicationsreadily available and may accordingly be referred to by States andintergovernmental organizations presentingwritten and oral statementsin the case in the same manner as publications in the public domain.

3. Written statements and/or documents submitted by international non-governmental organizations will be placed in a designated location inthe Peace Palace. All States as well as intergovernmental organizationspresenting written or oral statements under Article 66 of the Statutewill be informed as to the locationwhere statements and/or documentssubmitted by international non-governmental organizations may beconsulted.39

35 Chinkin, Third Parties in International Law, p. 232.36 Letter from the Registrar to Professor Reisman, Legal Consequences for States of the

Continued Presence of South Africa in Namibia (South-West Africa) Notwithstanding SecurityCouncil Resolution 276 (1970), 1970 ICJ Pleadings, II, pp. 638–639.

37 See further section 6.9. 38 International Court of Justice, Press Release, 30 July 2004.39 International Court of Justice, Practice Directions, as at 30 July 2004, Practice Direction XII.


It was already clear that the Court would receive material sent to it byNGOs on their own initiative. For instance, as was described in chapter 5,many ‘Declarations of Public Conscience’ were sent to the Courtand received by the Registrar in connection with the advisory pro-ceedings on Legality of the Use by a State of Nuclear Weapons in ArmedConflict in 1994 and 1995.40 However, these were not regarded asformal submissions. It is not surprising that the new PracticeDirections reflect the same view – that statements and other materialsent by NGOs on their own initiative are not to be regarded as part ofthe case file. On the whole, Practice Directions XII reflect the restric-tive approach earlier established by the Court towards NGO participa-tion, and do not indicate any possibility for NGOs to seek permissionto submit material to be regarded as formal submissions.41 There are,however, two points worth observing. The Court explains that allstates and IGOs presenting statements under Article 66 will beinformed about where to find material from international NGOs,thus implicitly inviting INGOs to submit such material and recognis-ing that such material will be taken care of. The Practice Directionsalso make clear that states and IGOs are free to refer to the NGOsubmissions in their own statements, although such submissionsare explicitly put on the same level as any kind of material avai-lable to the public. It can also be observed that, in accordance withArticle 66, the Practice Directions mention only international NGOs,thus excluding national NGOs.

Finally, the possibilities for NGOs to submit their views as expertsbefore the ICJ should be mentioned. The Court may, according toArticle 50 of its Statute, ‘at any time, entrust any individual, body,bureau, commission, or other organization that it may select, with thetask of carrying out an enquiry or giving an expert opinion’. NGOs arenot excluded by this provision or by the Rules, and their possibilitiestherefore depend on the Court’s need for additional information in thecase at hand.42 In the case of Competence of the ILO to Regulate, Incidentally,the Personal Work of the Employer, the PCIJ heard oral statements of expertsfrom the baking industry selected by the International Federation of

40 See section 5.2.41 On the other hand, the Practice Directions are addressed to states and may not be the

right place for information intended for NGOs.42 International Court of Justice, Rules of Court (1978) as Amended on 5 December 2000, Rules

62(2), 67(1).


Trade Unions (IFTU).43 It has been suggested that an NGO could useArticle 50 as a basis for a request that the ICJ appoints it to submit anexpert opinion if the NGO has relevant information.44 Apart from thispossibility, NGOs can be heard as experts on the request of one of theparties according to Articles 57 and 63 of the Court’s Rules of Procedure.

6.3 International criminal courts

The International Criminal Court

The Statute of the International Criminal Court does not include aprovision on the participation of amicus curiae in Court proceedings. Itshould be observed, however, that Article 44(4) provides for a possibilityfor the Court to ‘employ the expertise of gratis personnel offered byStates Parties, intergovernmental organizations or non-governmentalorganizations to assist with the work of any of the organs of theCourt’.45

The Rules of Procedure, on the other hand, do provide a legal basis forNGOs or other bodies or persons to act as amici curiae. Rule 103(1) statesthat:

At any stage of the proceedings, a Chamber may, if it considers it desirable forthe proper determination of the case, invite or grant leave to a State, organiza-tion or person to submit, in writing or orally, any observation on any issue thatthe Chamber deems appropriate.46

According to Article 103(2), the Prosecutor and the defence shall havethe opportunity to respond to such submissions. The Court is thus freeto accept written or oral submissions from NGOs. It remains to be seenhow the Rule will be applied in practice.

The International Criminal Tribunal for the former Yugoslavia

The ICTY and the ICTR both admit amicus curiae interventions by NGOs.Rule 74 of the Rules of Procedure of the ICTY states that:

43 Competence of the ILO to Regulate, Incidentally, the Personal Work of the Employer, PCIJ AdvisoryOpinion No. 2 (1922), Serie A/B, p. 13. The PCIJ also heard statements from theInternational Agricultural Commission.

44 Shelton, ‘The Participation of Nongovernmental Organizations’, p. 628.45 A/CONF.183/9, Rome Statute of the International Criminal Court, as corrected by the

proces-verbaux of 10 November 1998 and 12 July 1999.46 PCNICC/2000/1/Add.1, Report of the Preparatory Commission for the International Criminal

Court, 2 November 2000, p. 53.


A Chamber may, if it considers it desirable for the proper determination of thecase, invite or grant leave to a State, organization or person to appear before itand make submissions on any issue specified by the Chamber.

Rule 74 of the Rules of Procedure of the ICTR is identical, and the Rulesof the Special Court for Sierra Leone include a similar provision.47

So far, judgementshavebeen issuedby the ICTY in thirty-three cases.48

NGOs have filed amicus briefs in at least four of these.49 In at least onecase, the Court has denied an NGO leave to file an amicus brief.50 Briefshave also been filed by states, individuals and by academic institutions.A couple of cases will be described as an illustration.

The first amicus curiae briefs to be submitted to the ICTY were filed in the Tadic

case.51 In June 1995, a joint brief was submitted to the Trial Chamber by four

persons on behalf of the Jacob Blaustein Institute for the Advancement of

Human Rights of the American Jewish Committee, the Center for Constitutional

Rights, the InternationalWomen’s Human Rights Law Clinic of the City University

ofNewYork, theWomenRefugees Project of theHarvard Immigration andRefugee

Program and the Cambridge and Somerville Legal Services. Professor Christine

Chinkin also filed an amicus brief. The joint NGO brief pointed to the failure of

the Prosecutors to treat rape as an indictable offence in themotion for deferral of

47 Article 74 of the Rules of Procedure of the Special Court for Sierra Leone reads:‘A Chamber may, if it considers it desirable for the proper determination of the case,invite or grant leave to any State, organization or person to make submissions on anyissue specified by the Chamber.’

48 As of September 2004. The list of judgements is accessible online on the ICTYwebsite atwww.un.org/icty/cases/jugemindex-e.htm.

49 The Prosecutor v. Tihomir Blaskic, Order submitting the matter to Trial Chamber II andinviting amicus curiae, 14 March 1997; Prosecutor v. Dusko Tadic, Opinion and Judgementof Trial Chamber II, 7 May 1997, para. 11; Prosecutor v. Anto Furundzija, Order grantingleave to appear as amicus curiae, 10 November 1998; and Prosecutor v. Blagoje Simic et al.,Order granting leave to appear as amicus curiae and Scheduling Order, 16 March 1999(cited in Trial Chamber Decision on the Prosecution Motion under Rule 73 for a rulingconcerning the testimony of a witness, 27 July 1999). It should be observed, however,that the number of cases in which NGOs have filed briefs might be higher. Decisionsregarding amicus curiae participation are sometimes included in the judgement,sometimes in a court order or decision and sometimes in none of these, but in theAnnual Report.

50 Prosecutor v. Stanislav Galic, Judgement and Opinion of Trial Chamber I, 5 December2003, para. 806. The Court simply stated in the judgement that ‘the Trial Chamber didnot find it necessary for the proper determination of the case to admit the brief andrejected the application for leave to submit it’. See also below on the Erdemovic case.

51 Prosecutor v. Dusko Tadic, Opinion and Judgement of Trial Chamber II, 7 May 1997,para. 11.


the case from the German court to the ICTY.52 The NGO Juristes sans Frontieres

later sought andwas also granted leave to file a brief.53 Therewere no references

to the content of the amicus briefs in the judgement of the Trial Chamber or in

the judgement of the Appeals Chamber. One individual was refused leave to

appear as amicus.54

In the Furundzija case, eleven applicants who were scholars and/or NGO

representatives sought and were granted leave to make an amicus curiae submis-

sion.55 The applicants requested that the Tribunal should reconsider its decision

on the right of witness A to ‘equality, privacy, and security of the person, and to

representation by counsel’.56 Another amicus brief was filed by three applicants

on behalf of the Center for Civil and Human Rights of the Notre Dame Law

School in Indiana.57 Both the briefs dealt with issues pertaining to the re-opening

of the instant proceedings. The Chamber stated in the judgement that ‘Timely

assistance in this manner is generally appreciated’, but noted that by the time

the two briefs were received, the re-opening of the proceedings had already

been decided upon and commenced. The Chamber also explained that it was

not due to circumstances relating to witness A that the proceedings had been

re-opened.58 It can be observed that three of the persons filing amicus briefs had

been members of an expert group following the 1995 UN Fourth World

Conference on Women in Beijing together with one of the Prosecutors in the

instant case before the ICTY.59

52 To tie this question to the issue of deferral, the amici questioned whether the tribunalshould accept the case from Germany since it was not clear that the Prosecutor wouldfollow the precepts of universal justice. Rhonda Copelon, ‘Gender Crimes as WarCrimes: Integrating Crimes AgainstWomen into International Criminal Law’, 46McGillLaw Journal (2000), p. 229. Rhonda Copelon was one of the authors of the brief.

53 Prosecutor v. Dusko Tadic, Opinion and Judgement of Trial Chamber II, 7 May 1997,para. 15.

54 Ibid., Order Denying Leave to Appear as amicus curiae, 25 November 1996.55 Ibid., Judgement of the Trial Chamber, 10 December 1998, para. 35.56 Prosecutor v. Anto Furundzija, Order Granting Leave to Appear as amicus curiae,

10 November 1998.57 Ibid., Judgement of the Trial Chamber, 10 December 1998, para. 35 and Order Granting

Leave to Appear as amicus curiae, 11 November 1998.58 Ibid., Judgement of the Trial Chamber, 10 December 1998, para. 107.59 Ibid., Judgement of the Appeals Chamber, 21 July 2000, para. 167. Judge Mumba,

the Presiding Judge in the Appellant’s trial, had earlier been a member of the UNCommission on the Status of Women, which was responsible for the preparations ofthe Conference. The Appellant argued that JudgeMumba should have been disqualifiedbecause of her involvement in the Commission and her possible previous contacts withthe Prosecutor and the authors of the amicus brief, whomight also have been involved atsome stage with the work of the Commission, see paras. 164–168. The AppealsChamber found that there was no substance in the Appellant’s allegations, para. 215.


In the Blaskic case, Judge Gabrielle Kirk McDonald invited requests for leave to

submit amicus briefs on a number of legal issues.60 Leave for the submission of

amicus statements was sought by and granted to several individual experts on

international law and organisations, including the Max Planck Institut for

Comparative Public Law and International Law, Juristes sans Frontieres, the

Lawyers’ Committee for Human Rights and the Coalition for International

Justice.61 The Trial Chamber invited representatives of all these organisations

but the last-mentioned to attend a hearing in order to respond to questions

from the Judges of the Trial Chamber and to provide any further assistance

the Trial Chamber could require.62 The amicus briefs were not mentioned in

the judgement of the Trial Chamber.63 The Appeals Chamber invited states,

organisations and persons to submit requests for amicus curiae participation on

the same legal issues as the Trial Chamber.64 Nine briefs were filed, among

which were one from Juristes sans Frontieres and one from the Max Planck

Institut.65

The Erdemovic case is mentioned in the Annual Report of the Tribunal as an

example of a case where persons and organisations have sought leave to appear

as amicus curiae.66 As there is no Court Order granting such leave, and no men-

tion of amicus participation in the judgements, it may be assumed that leave was

refused.

An NGO also appeared in the case of Karadzic and Mladic. In June 1996,the Court invited Human Rights Watch to appear during the proceed-ings pursuant to Rule 61. This Rule contains provisions on the procedurein case of failure to execute a warrant. In such proceedings, the TrialChamber examines all evidence in order to determine whether there arereasonable grounds for believing that the accused has committed all orany of the charges in the indictment. Rule 61 B provides that theProsecutor or the Trial Chamber may call any witness whose

60 The Prosecutor v. Tihomir Blaskic, Order submitting the matter to Trial Chamber II andinviting amicus curiae, 14 March 1997.

61 Ibid., Orders Granting Leave to Appear as amicus curiae, 11 April 1997 (twelve differentorders) and 14 April 1997 (one order) and A/52/375, Report of the International Tribunal . . . ,18 September 1997, paras. 50–52 and n. 1. There is no order refusing leave for thesubmission of an amicus brief.

62 The Prosecutor v. Tihomir Blaskic, Orders Granting Leave to Appear as amicus curiae,11 April 1997.

63 Ibid., Judgement of the Trial Chamber, 3 March 2000.64 Ibid., Appeals Chamber, Order Granting Extension of Time, 17 September 1997 and

A/52/375, Report of the International Tribunal . . . , 18 September 1997, para. 52.65 A/53/219, Report of the International Tribunal . . . , 10 August 1998, para. 99 and n. 17.66 A/52/375, Report of the International Tribunal . . . , 18 September 1997, para. 50.


statement has been submitted to the confirming judge. Hearings wereheld with Human Rights Watch on 27 June to 5 July 1996.67

Although this is not a form of amicus curiae participation, it can beobserved that Article 18 of the Statute of the Tribunal states that: ‘TheProsecutor shall initiate investigations ex officio or on the basis of informa-tion obtained from any source, particularly from Governments, UnitedNations organs, intergovernmental and non-governmental organisations.’

The International Criminal Tribunal for Rwanda

The ICTR was set up by the UN Security Council in November 1994 toprosecute serious violations of human rights and humanitarian lawcommitted in Rwanda in 1994. As of September 2004, nine cases hadbeen completed and eleven were on appeal.68 The Tribunal’s reportingof amicus curiae participation of NGOs is scarce.69 It is not possible to sayfor certain how many times non-governmental amici have participatedin proceedings before the ICTR, as the Tribunal does not seem toreport on all such submissions.70 I have found information on non-governmental amicus participation in only four cases.

In the Akayesu case, the prosecutor had initially not charged for rape or other

crimes of sexual violence, although rape is included in the Statute of the

Tribunal as a crime against humanity and a war crime.71 During the trial,

witnesses who were called in relation to other crimes testified that rapes had

occurred in Akayesu’s commune. However, NGOs received the information that

the prosecutor was not planning to amend the indictment. The NGOs the

Working Groups on Engendering the Rwanda Tribunal and the Center for

Constitutional Rights prepared and circulated an amicus curiae brief which was

signed by almost thirty NGOs before it was submitted to the Tribunal. The brief

called upon the Prosecutor to ensure the inclusion of rape in charges of

genocide, as well as war crimes and crimes against humanity.72 A couple of

67 ICTY, Summary of Judicial Activities, accessible online at www.un.org/icty/summary/summar.htm, as of 3 September 2004.

68 The list is accessible online on the tribunal’s website at www.ictr.org/ENGLISH/cases/completed.htm, as of 6 September 2004.

69 For the text of the relevant Article in the Tribunal’s Rules of Procedure, see section 6.3.70 An amicus brief was filed in the case of the Prosecutor v. Jean Paul Akayesu, according to

Rhonda Copelon, who was one of the authors. However, there is no court ordergranting leave for this submission, and the brief is not mentioned in the judgement.Copelon, ‘Gender Crimes as War Crimes’, pp. 225–226.

71 ICTR, Chamber I, The Prosecutor v. Jean-Paul Akayesu, 2 September 1998.72 Copelon, ‘Gender Crimes as War Crimes’, p. 225 and Human Rights Watch Press

Release, Montreal, 1 September 1998.


weeks later, the Prosecutor changed the indictment to include charges of rape,

allegedly not as a result of the amicus brief, but because of the witnesses’

testimonies. The amicus brief is not listed in the docket of the case, although

the Chamber had acknowledged receipt of the brief in a fax message, and it is

not mentioned in the judgement.73 The Akayesu judgement was the first inter-

national conviction for the crime of genocide and the first to recognise rape

and sexual violence as constitutive acts of genocide.

At the appeals stage of the Akayesu case, the International Criminal Defence

Attorneys Association applied for leave to submit an amicus curiae brief.74 In the

petition for intervention, the NGO stated that it would submit that an accused

who faces themost serious chargeswhich can be brought against a human being

must be entitled to choose, in a fully confident and informed manner, his

defence counsel from the list maintained by the Tribunal’s Registrar.75 The

background was, according to the association, that Akayesu had requested a

Canadian defence counsel. This request was rejected by the Registrar, who gave

several different explanations thereto, inter alia, that he could not assign French

or Canadian counsels as they were over-represented on the Tribunal’s list.76 The

brief was not mentioned in the judgement of the Appeals Chamber and there is

no Court Order or Decision on the matter.77 However, it is stated in the Annual

Report of the petitioning NGO that the brief was indeed submitted in June 1999.

On 27 July, the Appeals Chamber recognised the right to free choice of the

counsel in the Akayesu case and directed the Registrar to assign to him the

counsel of his choice.78

In the case of Alfred Musema, the NGO African Concern sought leave to appear as

amicus curiae before the Trial Chamber. The amicus participation concerned the

powers of the Tribunal to prosecute for serious violations of a number of

instruments of international humanitarian law and to order restitution under

the Statute and Rules of the Tribunal. The application is discussed at some

length in the Trial Chamber’s decision.79 The Defence and the Prosecutor filed

73 Copelon, ‘Gender Crimes as War Crimes’, pp. 225–226.74 A/54/315, Report of the International Criminal Tribunal . . . , 7 September 1999, para. 116.75 International Criminal Defence Attorneys Association, Petition for Intervention as amicus

curiae, April 1999.76 Brief of the International Criminal Defence Attorneys Association, June 1999.77 ICTR Appeals Chamber, The Prosecutor v. Jean-Paul Akayesu, 1 June 2001. In fact, it is not

clear from the Annual Report of the Tribunal whether leave was granted for the brief tobe filed. It is mentioned in the same report that another NGO sought leave to file a briefin the Musema case (see below), but it is not mentioned that it was refused. A/54/315,Report of the International Criminal Tribunal . . . , 7 September 1999, para. 116.

78 ICDAA Annual Report, 1998–1999 (Major Projects; Activities concerning the InternationalCriminal Tribunal for Rwanda).

79 The Prosecutor v. Alfred Musema, Decision on an Application by African Concern for Leaveto Appear as amicus curiae, 17 March 1999.


written responses to African Concern’s application. The Prosecutor argued that,

although she was not ‘particularly against’ any person filing an amicus brief, the

main purpose ofAfricanConcern’s applicationwas to have a platform to promote

its interests as regarded restitution in Rwanda. The Defence submitted that the

Chamber should not grant leave as the case against the accused did not allege

any pillage or unlawful taking of property by the accused, whichmeant that the

brief would not be pertinent for the proper determination of the specific case.80

The Chamber recalled that, according to Article 74 of the Rules of Procedure, the

submissions of the amicus curiaemust be relevant to the case and of assistance for

the proper determination thereof. The Chamber considered that there appeared

no specific legal or factual arguments in the application to support the appli-

cant’s two requests. The amicus brief was thus not considered desirable for the

proper determination of the case and was rejected.81

African Concern also sought leave to file a brief in the case of Theoneste

Bagosora.82 It is not clear from the Tribunal’s documentation whether the

leave was granted or refused.

In the case of Prosecutor v. Samuel Imanishimwe et al., Trial Chamber III, the

Coalition ForWomen’s Human Rights in Conflict Situations applied for leave to

file an amicus curiae brief.83 The Trial Chamber dismissed the application, and

the Coalition filed a motion applying for reconsideration of this decision. In its

motion, the Coalition expressed concern that the decision appeared to prohibit

amicus intervention in relation to issues that were not already under considera-

tion by the Trial Chamber and would thereby prevent an intervenor from bring-

ing a new or unconsidered issue to the attention of the Trial Chamber. The

Applicant suggested that the Chamber adopt the test applied by Chamber I in the

Akayesu case, permitting amicus intervention where the third party may be of

assistance for the proper determination of the case.84 The Trial Chamber empha-

sised that the circumstances of the case were clearly distinguishable from the

facts that precipitated the decision in Prosecutor v. Akayesu. The Chamber also

observed that the Prosecutor had indicated that she would file a separate indict-

ment with respect to the matter raised in the amicus brief. With regard to the

possibility of reviewof the previous decisionnot to grant leave for theCoalition to

80 Ibid., paras. 4–6.81 Ibid., paras. 8–14. See also The Prosecutor v. Alfred Musema, Judgement of the Trial

Chamber, 27 January 2000, para. 26.82 A/54/315, Report of the International Criminal Tribunal . . . , 7 September 1999, para. 116.83 CaseNo. ICTR 99-46-T, Trial Chamber III,Decision on the Coalition forWomen’s Human Rights

in Conflict Situations Motion for Reconsideration of the Decision on Application to File an amicuscuriae Brief, 24 September 2001.

84 This decision granted leave to a representative of the UN Secretariat to make astatement on the lifting of the immunity of the witness Major-General Dallaire, whowas the former Commander-in-Chief of UNAMIR, February 1998, The Prosecutor v. Jean-PaulAkayesu, Order granting leave for amicus curiae to appear, ICTR-96-4-T 12.


appear as amicus curiae, the Chamber stated that review, as regulated in Article 25

of the Court’s Statute and Article 120 of its Rules, was an exceptional measure

that could be invoked only where a new and potentially decisive fact had been

discovered. In its request for review, the Applicant had not raised any new fact

that could serve to trigger the exceptional jurisdiction of the Chamber to recon-

sider a previous decision. Therefore, the Chamber did not need to address

whether review proceedings were available to non-parties or in relation to deci-

sions other than judgements, and dismissed the motion.85

In the case of Samuel Imanishimwe, described above, it was alleged byone of the defence counsels that an amicus brief could not be filedwithout a previous invitation from the Court specifying a specificissue that should be addressed.86 The Chamber did not address thisissue in its decision. It can be assumed that the reason for this wasthat it was already sufficiently clear that such an invitation was notneeded. Although the UN Secretariat was indeed invited in the Akayesucase to send a representative to appear as amicus curiae before the Courtin order to make a statement on a specific matter, it is clear from theCourt’s case-law that it can accept amicus submissions without previousinvitation.87

Finally, it can be noted that, as for the ICTY, the Statute of the ICTRprovides that: ‘The Prosecutor shall initiate investigations ex officio

or on the basis of information obtained from any source, particularlyfrom Governments, United Nations organs, intergovernmental andnon-governmental organisations.’88

6.4 The WTO dispute settlement procedure

The legal basis for the dispute settlement procedure of the World TradeOrganization (WTO) is the Dispute Settlement Understanding (DSU),which was one of the WTO agreements that came out of the UruguayRound negotiations.89 The dispute procedure applies only to the state

85 Case No. ICTR 99-46-T, Trial Chamber III, Decision on the Coalition for Women’s HumanRights in Conflict Situation’s Motion for Reconsideration of the Decision on Application to File anamicus curiae Brief, 24 September 2001.

86 Ibid., para. 4.87 The Prosecutor v. Jean-Paul Akayesu, Order granting leave for amicus curiae to Appear,

ICTR-96-4-T 12.88 Statute of the International Tribunal for Rwanda, Article 17.89 Agreement Establishing the World Trade Organization (1994), annex 2, Understanding

on Rules and Procedures Governing the Settlement of Disputes (Dispute SettlementUnderstanding, DSU).


members of theWTO.90 If a dispute arises betweenWTOmember statesregarding their rights and obligations under the WTO agreements andthe dispute cannot be settled through consultations, a panel of (nor-mally) three persons is set up by the Dispute Settlement Body (DSB) toresolve the conflict, provided that the complaining party so requests.91

Such a panel ‘shall be composed of well-qualified governmental and/ornon-governmental individuals’.92 The Understanding provides, how-ever, that panelists shall serve in their individual capacities and not asgovernment representatives, nor as representatives of any organisa-tion.93 Appeals may be brought to a standing Appellate Body, composedof seven independent experts.94

The question of non-governmental participation in a governmental dele-gation in a dispute before a panel was discussed in the Indonesia Auto case.

The United States noted that Indonesia’s delegation list included several

private lawyers, and objected to the participation of these non-governmental

employees in meetings of the Panel.95 The Panel concluded that it was for the

government of Indonesia to nominate themembers of its delegation, and found

no provision in the WTO Agreement or the DSU which prevented a WTO

member from determining the composition of its delegation to WTO panel

meetings. The Panel emphasised that all members of parties’ delegations –

whether or not they are government employees – are present as representatives

of their governments.96

The issue of amicus curiae participation of NGOs was much discussedduring the 1990s. It was made clear first in the case of United States –

Import Prohibition of Certain Shrimp and Shrimp Products that panels and theAppellate Body may receive amicus curiae briefs submitted by NGOs. Thedispute concerned a US law according to which nations catchingwild shrimp and exporting them to the United States had to be certifiedas having adopted certain measures requiring shrimp trawls to beequipped with ‘turtle-excluder’ devices. In January 1997, India,Malaysia, Pakistan and Thailand requested the establishment of aPanel to examine their complaint, arguing that the law was an illegal

90 DSU, Article 1.1. 91 DSU, Articles 4.7, 6.1, 8.5. 92 DSU, Articles 1.1, 8.1.93 DSU, Article 8.9. 94 DSU, Article 17.95 WT/DS54/R,WT/DS55/R,WT/DS59/R,WT/DS64/R, Indonesia – Certain Measures Affecting the

Automobile Industry, Report of the Panel, 2 July 1998, paras. 4.1–4.7.96 The Panel also noted that, unlike in the Indonesia Auto case, the working procedures

of the Panel in the Bananas III case, which had been referred to by the United Statesin support of its view, contained a specific provision requiring the presence onlyof government officials. Ibid., paras. 4.4, 14.1.


restriction on shrimp exports. In the course of proceedings before thePanel, two amicus curiae briefs were submitted by NGOs.97 The Panelacknowledged receipt of the two briefs, which were also sent to theparties. The complaining parties requested the Panel not to consider thecontents of the briefs in dealing with the dispute, while the UnitedStates urged the Panel to avail itself of any relevant information in thetwo briefs, as well as in any other similar communications.98 The Panelrejected the two briefs, arguing that:

We had not requested such information as was contained in the above-mentioned documents. We note that, pursuant to Article 13 of the DSU, theinitiative to seek information and to select the source of information rests withthe Panel. In any other situations, only parties and third parties are allowed tosubmit information directly to the Panel. Accepting non-requested informationfrom non-governmental sources would be, in our opinion, incompatible withthe provisions of the DSU as currently applied. We therefore informed theparties that we did not intend to take these documents into consideration.We observed, moreover, that it was usual practice for parties to put forwardwhatever documents they considered relevant to support their case and that, ifany party in the present dispute wanted to put forward these documents, orparts of them, as part of their own submissions to the Panel, they were free to doso. If this were the case, the other parties would have two weeks to respond tothe additional material. We noted that the United States availed themselves ofthis opportunity by designating Section III of the document submitted by theCenter forMarine Conservation and the Center for International EnvironmentalLaw as an annex to its second submission to the Panel.99

The Panel thus interpreted the DSU in a restrictive way, stating thataccepting non-requested information from non-governmental sourceswould be ‘incompatible with the provisions of the DSU as currentlyapplied’. However, it still allowed the parties to the dispute to putforward ‘whatever documents they considered relevant’ as part of itsown submissions to the Panel.

The United States appealed the decision of the Panel. On the questionof amicus briefs, the Appellate Body noted that:

Itmay bewell to stress at the outset that access to the dispute settlement processof the WTO is limited to Members of the WTO. This access is not available,under the WTO Agreement and the covered agreements as they currentlyexist, to individuals or international organizations, whether governmental or

97 WT/DS58/R, United States – Import Prohibition of Certain Shrimp and Shrimp Products, Reportof the Panel, 15 May 1998, p. 280.

98 Ibid. 99 Ibid., p. 281.


non-governmental . . . Thus, under the DSU, only Members who are parties to adispute, or who have notified their interest in becoming third parties in such adispute to the DSB, have a legal right tomake submissions to, and have a legal rightto have those submissions considered by, a panel. Correlatively, a panel is obligedin law to accept and give due consideration only to submissions made by theparties and the third parties in a panel proceeding.100

The Appellate Body believed, however, that the issue would be mostappropriately addressed by examining what a panel was authorised to dounder the DSU. It therefore went on to interpret Article 13 of theDispute Settlement Understanding, which reads:

1. Each panel shall have the right to seek information and technicaladvice from any individual or body which it deems appropriate . . .

2. Panels may seek information from any relevant source and mayconsult experts to obtain their opinion on certain aspects of thematter.With respect to a factual issue concerning a scientific or other technicalmatter raised by a party to a dispute, a panel may request an advisoryreport in writing from an expert review group.101

The Appellate Body found that, within the context of the broad authorityvested in panels by the DSU, and given the object and purpose of thePanel’s mandate, the word ‘seek’ should not be read too literally.102

Authority to seek information was not properly equated with a prohib-ition on accepting information submitted without having been requestedby a Panel. The Appellate Body stated that a Panel has the discretionaryauthority either to accept and consider, or to reject information and advicesubmitted to it – whether requested by a Panel or not.103 It concluded:

We find, and so hold, that the Panel erred in its legal interpretation that accept-ing non-requested information from non-governmental sources is incompatiblewith the provisions of the DSU. At the same time, we consider that the Panelacted within the scope of its authority under Articles 12 and 13 of the DSU inallowing any party to the dispute to attach the briefs by non-governmentalorganizations, or any portion thereof, to its own submissions.104

The United States attached three exhibits to its appellant’s submission,containing additional amicus briefs submitted by three different groupsof NGOs. In addition, one NGO filed a revised version of the brief which

100 WT/DS58/AB/R,United States – Import Prohibition of Certain Shrimp and Shrimp Products, Reportof the Appellate Body, 12 October 1998, para. 101 (emphasis in original).

101 Ibid., para. 102. 102 Ibid., para. 107. 103 Ibid., para. 108. 104 Ibid., para. 110.


it had earlier submitted to the Panel.105 The complaining states objectedto the briefs and argued, inter alia, that these were not in conformitywith Article 17(6) of the DSU, which states that an appeal shall be‘limited to issues of law covered in the panel report and legal interpret-ations developed by the panel’. They further argued that the submissionof exhibits that presented the views of NGOs was not contemplated by,or authorised by the DSU or the Working Procedures, which vest thediscretion to request additional submissions with the AppellateBody.106 The Appellate Body issued a preliminary ruling stating that:

We have decided to accept for consideration, insofar as they may be pertinent,the legal arguments made by the various non-governmental organizations inthe three briefs attached as exhibits to the appellant’s submission of the UnitedStates, as well as the revised version of the brief by the Center for InternationalEnvironmental Law et al., which was submitted to us on 3 August 1998.107

The Appellate Body considered that the attaching of a brief or othermaterial to the submission of the appellant or appellee, no matter itsorigin, rendered that material at least prima facie an integral part of thatparticipant’s submission. In the appeal in question, the United Stateshad made it clear that its views on the legal issues of the appeal werefound in its main submission. The United States had also confirmed itsagreement with the legal arguments of the NGOs, but only to the extentthat those arguments concurred with the arguments set out in its mainsubmission. Considering that the United States had itself accepted thebriefs in a tentative and qualified manner only, the Appellate Bodydecided to focus on the legal arguments in the main appellant’s sub-mission.108 The brief submitted separately by an NGO was accepted inthe Preliminary Ruling by the Appellate Body, but does not seem to havebeen considered by it.109

One of the three groups of NGOs commented on the matter of anamicus brief in its submission.110 It argued more or less in line with theAppellate Body that Article 13 of the DSU empowered panels to receiveNGO briefs, but also stated that they had offered considerable expertisein the Panel’s deliberations. Further, the acceptance of amicus briefs was

105 Ibid., para. 79. 106 Ibid., paras. 79–82. 107 Ibid., para. 83.108 Ibid., paras. 89–91. 109 Ibid., para. 91, e contrario.110 Amicus brief to the Appellate Body on United States – Import Prohibition of Certain Shrimp and

Shrimp Products, submitted by the Center for International Environmental Law (CIEL),the Center for Marine Conservation (CMC), the Environmental Foundation Ltd (EFL),Mangrove Action Project (MAP), Philippine Ecological Network (PEN), Red Nacional deAccion Ecologica (RENACE) and Sobrevivencia, printed by the CIEL, 1999, pp. 45–47.


supported by the context, object and purpose of the WTO Agreements,in the view of the NGOs. First, the WTO Preamble – forming an import-ant part of the DSU’s interpretative context – endorsed the objective ofsustainable development, for which public participation was central.Secondly, public participation was supported by the reference in thePreamble to ‘international law relations between parties’, as well as bydeveloping norms of customary international law. The Rio Declarationand Agenda 21 recognised the necessity of adequate public participa-tion in the decision making of international bodies and called for theinclusion of contributions from NGOs and broad access to dispute set-tlement mechanisms. Furthermore, the acceptance of amicus briefs wascommon practice in other multilateral judicial bodies.111

The dispute United States – Imposition of Countervailing Duties on Certain

Hot-Rolled Lead and Bismuth Carbon Steel Products Originating in the UnitedKingdom was initiated by a complaint brought by the European Com-munities with respect to countervailing duties imposed by theUnited States on such products originating in the United Kingdom. InFebruary 2000, the Appellate Body received two amicus curiae briefssubmitted by the American Iron and Steel Institute and the SpecialitySteel Industry of North America.112 A week later, the EC filed a letterarguing that these amicus curiae briefs were inadmissible in appellatereview proceedings, and stating that it did not intend to respond to thecontent of the briefs. The EC argued that the basis contained in Article 13of the DSU for allowing amicus briefs in Panel proceedings did not applyto the Appellate Body and that, in any case, the provision was limited tofactual information and technical advice and would not include legalarguments or legal interpretations received from those other thanmembers. Furthermore, the EC stated that neither the DSU nor theWorking Procedures allowed amicus briefs to be admitted in AppellateBody proceedings, as the DSU and the Working Procedures confinedparticipation in an appeal to participants and third participants.Moreover, Article 17(10) of the DSU provided for the confidentiality ofAppellate Body proceedings.

The third participants, Brazil and Mexico, agreed with the EC thatthe Appellate Body did not have the authority to accept amicus curiae

111 Ibid., pp. 46–47.112 United States – Imposition of Countervailing Duties on Certain Hot-Rolled Lead and Bismuth

Carbon Steel Products Originating in the United Kingdom, Report of the Appellate Body,WT/DS138/AB/R, 10 May 2000, para. 36.


briefs. The United States, for its part, argued that the Appellate Bodydid indeed have this authority and urged it to accept the briefs sub-mitted by the steel industry associations. The United States noted that,as was explained by the Appellate Body in the United States – Shrimp

case, the DSU granted to a panel ‘ample and extensive authority to under-take and to control the process by which it informs itself both ofthe relevant facts of the dispute and of the legal norms and principlesapplicable to such facts’.113 The United States held that it was clear thatthe Appellate Body also had such authority, as the DSU authorised it todrawup its ownworking procedures and did not agree that acceptance ofan unsolicited amicus curiae brief would compromise the confidentialityof the Appellate Body proceedings.114

The Appellate Body noted that the DSU made clear that it had broadauthority to adopt procedural rules that did not conflict with any rulesand procedures in the DSU or the covered agreements. While againemphasising that non-members of the WTO had no legal right tomake submissions to nor to be heard by the Appellate Body, it was ofthe opinion that it had the legal authority under the DSU to accept andconsider amicus briefs in an appeal in which it found it pertinent anduseful to do so. In the appeal in question, however, the AppellateBody did not find it necessary to take the two amicus briefs filed intoaccount in rendering its decision.115

The case of European Communities –Measures Affecting Asbestos and Asbestos-Containing Products gave rise to the next discussion on amicus curiae parti-cipation. The case was brought in May 1998 by Canada, which requestedthe DSB to establish a Panel to examine the French measure concerningthe prohibition of asbestos and products containing asbestos. In 1999, thePanel received four amicus briefs from the NGOs Collegium Ramazzini,the Ban Asbestos Network, the Instituto Mexicano de Fibro-Industrias ACand the American Federation of Labor and Congress of IndustrialOrganizations.116 Referring to the position taken in the case of UnitedStates – Import Prohibition of Certain Shrimp and Shrimp Products, the Panel

113 WT/DS58/AB/R, 12 October 1998, para. 106.114 United States – Imposition of Countervailing Duties on Certain Hot-Rolled Lead and Bismuth

Carbon Steel Products Originating in the United Kingdom, Report of the Appellate Body,WT/DS138/AB/R, 10 May 2000, para. 38.

115 Ibid., paras. 39–42.116 WT/DS135/R, European Communities – Measures Affecting Asbestos and Asbestos-Containing

Products, Report of the Panel, 18 September 2000, para. 6.1.


sent the briefs to the parties for their information. Canada notified thePanel that, bearing inmind the general nature of the opinions expressedby the NGOs in those submissions, they would not be useful to the Panelat this advanced stage of the proceedings. Canada thus urged the Panel toreject the four briefs. The EC incorporated the submission of the first- andlast-mentioned organisations, while it proposed that the Panel shouldreject the submissions from the Ban Asbestos Network and the InstitutoMexicano de Fibro-Industrias AC, as their briefs contained no informa-tion of relevance to the dispute.117

The Panel informed the parties that it would consider the twobriefs which had been incorporated into the EC’s submission, andCanada was given the opportunity to reply to these documents. Bycontrast, the Panel decided not to take the submission from the BanAsbestos Network and the Instituto Mexicano de Fibro-Industrias ACinto account. In June 2000, the Panel received another amicus brieffrom an NGO, Only Nature Endures. The Panel decided not to acceptthe brief since it was submitted at a stage in the procedure when itcould no longer be taken into account. It also decided that it wouldaccept no more amicus briefs from that point until the end of theprocedure.118

The Panel issued its report on 18 December 2000, in which it upheldthe French ban on asbestos. Canada appealed the decision. TheAppellate Body wrote to the Parties, recognising the possibility that itmight receive submissions in the appeal from persons other than par-ties and third parties to the dispute. The Appellate Body was of the viewthat the fair and orderly conduct of this appeal could be facilitated bythe adoption of appropriate procedures, pursuant to Rule 16(1) of theWorking Procedures, to deal with any possible submissions receivedfrom such persons. After having received the different views of theparties and the third parties and consultation among the members ofthe Appellate Body, it did adopt such an additional procedure, for thepurposes of the appeal only, to deal with written submissions receivedfrom persons other than the parties and third parties to the Asbestos

dispute. The Additional Procedure provided, inter alia, that ‘Any person,whether natural or legal, other than a party or a third party to thisdispute, wishing to file a written brief with the Appellate Body, mustapply for leave to file such a brief from the Appellate Body by noon on

117 Ibid., para. 6.2. 118 Ibid., paras. 6.3–6.4.


Thursday, 16 November 2000.’119 According to the report of the AppellateBody, it received thirteenwritten submissions fromNGOs that were notsubmitted in accordance with the Additional Procedure. Several of thesubmissions were received while the Body was still considering thepossible adoption of an Additional Procedure. After the adoption ofthe Procedure, each of the submissions was returned to its sender, alongwith a letter informing it of the procedure. Only one of the NGOs subse-quently submitted a request for leave in accordance with the AdditionalProcedure.120 After the adoption of the Additional Procedure, theAppellate Body received another seventeen applications requestingleave to file amicus briefs. Six of these requests were received after thedeadline. All these applicants were denied leave. Eleven requests werereceived within the time limits. Surprisingly, all these requests were alsodenied. In its report, the Appellate Body stated that:

We carefully reviewed and considered each of these applications in accordancewith the Additional Procedure and, in each case, decided to deny leave to file awritten brief.121

Thus, all in all, thirty briefs and applications for leave to file an amicus

brief were received, and all were denied. Many NGOs, having firstwelcomed the adoption for the first time of a formal framework foramicus curiae participation, expressed disappointment and criticismover this turn of events.122 Some NGOs challenged the AppellateBody’s rejection of their requests by submitting a joint amicus brief

119 WT/DS135/AB/R, European Communities – Measures Affecting Asbestos and Asbestos-ContainingProducts, Report of the Appellate Body, 12 March 2001, paras. 50–51 (emphasis inoriginal). Applicants for leave were also asked to adhere to a number of requirements,such as stating their legal status, their general objectives, the nature of their activitiesand their sources of financing, as well as specifying the nature of their interest in theappeal. Ibid. and WT/DS135/9, Communication from the Appellate Body with attachmentAB-2000–11, Additional Procedure Adopted Under Rule 16(1) of the Working Procedures forAppellate Review.

120 WT/DS135/AB/R, European Communities – Measures Affecting Asbestos and Asbestos-ContainingProducts, Report of the Appellate Body, 12 March 2001, para. 53.

121 Ibid., paras. 55–56.122 See, e.g., A Court Without Friends? One Year After Seattle the WTO Slams the Door on NGOs,

Joint Press Release by Greenpeace International, IBAS, FIELD, WWF and CIEL, 22November 2000; ‘WTO General Council Slaps Appellate Body on Amicus Briefs’,45 ICTSD BRIDGESWeekly Trade News Digest, No. 45, 28 November 2000; and Alice Palmerand JacobWerksman, ‘World Trade Organization, European Communities – MeasuresAffecting Asbestos and Asbestos-Containing Products, Panel Report’, 10 RECIEL (2001),pp. 129–130.


under the Body’s general authority to receive such submissions, but theAppellate Body did not accept it.123

The adoption of the Additional Procedure by the Appellate Body alsogave rise to controversy among WTO members. Shortly after the adop-tion of the Procedure, theWTOGeneral Council convened to discuss thematter of amicus curiae participation.124 The majority of the delegatesthat spoke were of the opinion that it was unacceptable for theAppellate Body to receive and consider amicus submissions. Uruguay,for example, stated that the WTO dispute settlement system had beendescribed as the ‘jewel’ of the Uruguay Round and that it should not beallowed to ‘lose its brilliance or its value’. Uruguay noted with greatconcern the decision of the Appellate Body to adopt an AdditionalProcedure and emphasised that decisions on WTO relations withNGOs statutorily belonged to the General Council.125 Although therewas no consensus, the Chairman stated that he believed that, in light ofthe views expressed and in the absence of clear rules, the AppellateBody should exercise ‘extreme caution’ in future cases until membershad considered what rules were needed. The Chairman was, however,instructed by the Council to initiate informal discussionswithmembersto establish procedures on amicus briefs.126

So far, no rules have been elaborated, and the issue of amicus curiaeparticipation is dealt with on an ad hoc basis by the Panel and theAppellate Body. Unsolicited amicus briefs have been submitted in severallater disputes.127 Most submissions have not been considered by the

123 Palmer and Werksman, ‘World Trade Organization’, p. 130, and WT/DS135/AB/R,European Communities – Measures Affecting Asbestos and Asbestos-Containing Products, Reportof the Appellate Body, 12 March 2001, para. 57.

124 General Council, Minutes of Meeting, WT/GC/M/60, 23 January 2001.125 Ibid., paras. 4–6. 126 Ibid., paras. 119–131.127 SeeWT/DS141/R, European Communities – Anti-Dumping Duties on Imports of Cotton-Type Bed

Linen from India, 30 October 2000, para. 6.1 and n. 10; WT/DS122/AB/R, Thailand –Anti-Dumping Duties on Angles, Shapes and Sections of Iron or Non-Alloy Steel and H-Beams fromPoland, 12 March 2001, paras. 62–78; WT/DS248/AB/R (joined with several othernumbers); WT/DS212/AB/R, United States – Countervailing Measures Concerning CertainProducts from the European Communities, 9 December 2002, paras. 9–10, 76; United States –Definitive Safeguard Measures on Imports of Certain Steel Products, 10 November 2003, paras.9–10, 268; WT/DS257/AB/R, United States – Final Countervailing Duty Determination withRespect to Certain Softwood Lumber from Canada, 19 January 2004, para. 9; WT/DS277/R,United States – Investigation of the International Trade Commission in Softwood Lumber FromCanada, 22 March 2004, n. 75 with CorrigendumWT/DS257/R/Corr.11, 29 August 2003;WT/DS231/AB/R, European Communities – Trade Description of Sardines, 26 September 2002(at several places).


Panel or the Appellate Body.128 The standard explanation is that sub-missions are not useful for the determination of the dispute or thatarguments raised by amici curiae can be considered by the Panel or theAppellate Body only to the extent that those arguments are taken up inthe written submissions and/or oral statements of a party or third party.Nevertheless, in European Communities – Trade Description of Sardines, theAppellate Body explicitly reiterated its view that it is indeed entitled toaccept and consider amicus briefs.129

In conclusion, it can be observed that both the Panel and theAppellate Body have received a number of submissions from NGOs,also independently from the submissions of the parties. It was madeclear by the Appellate Body in the Shrimp case that Panels and theAppellate Body itself both have a right, but not an obligation, to acceptamicus briefs. In the Asbestos case, the Appellate Body even adopted anAdditional Procedure to deal with such submissions. However, in spiteof the great number of submissions made by NGOs, amicus briefs havevery rarely been actually considered, and then only as part of the sub-missions of one of the parties. The issue of amicus briefs is clearly morecontroversial within the WTO context than in many other fields ofinternational law, probably because of the considerable commercialinterests at stake. It is interesting to note that during the discussionson amicus briefs in differentWTO disputes, it has never been argued thatsuch submissions lack importance.130 Rather, the controversy seems toindicate that the WTO members believe that they may affect the out-come of a dispute.

128 In United States – Preliminary Determinations with Respect to Certain Softwood Lumber fromCanada, the Panel decided to consider an unsolicited amicus curiae brief from aCanadian NGO, the Interior Alliance. The brief was submitted to the Panel prior to itsfirst substantive meeting with the parties and the parties and third parties were givenan opportunity to comment on the brief. After that meeting, the Panel received threeadditional unsolicited amicus curiae briefs. The Panel stated that ‘for reasons relating tothe timing of these submissions, we decided not to accept any of these later briefs’,WT/DS236/R, 27 September 2002, para. 7.2.

129 WT/DS231/AB/R, European Communities – Trade Description of Sardines, 26 September2002, para. 157. Themain topic of this discussionwas an amicus curiae submission fromaWTOmember that had not been a third party before the panel and, therefore, couldnot become a third participant in the appellate proceedings.

130 On the probability that amicus submissions assert an influence on the outcome ofWTOdisputes as compared to other judicial proceedings, see Andrea Kupfer Schneider,‘Institutional Concerns of an Expanded Trade Regime:Where ShouldGlobal Social andRegulatory Policy be Made? Unfriendly Actions: The Amicus Brief Battle at the WTO’,7 Widener Law Symposium Journal 87 (2001), pp. 101–107.


6.5 The European Commission and Courtof Human Rights

The Commission

In linewith the confidentiality of the Commission’s procedure, its Rulesincluded no provision for the submission of amicus briefs.131 The appli-cant’s lawyer could, however, incorporate NGO reports or opinions aspart of the written submissions. A few examples of cases where this wasdone are Gundem v. Turkey (in which the applicant submitted a report byHuman Rights Watch/Helsinki and extracts from a report by theKurdish Human Rights Project), Kilic v. Turkey (reports by HumanRights Watch/Helsinki and by Amnesty International), Aydin v. Turkey(report by Amnesty International), Nsangu v. Austria (report by AmnestyInternational), Bahaddar v. the Netherlands (letter and report by AmnestyInternational) and Paez v. Sweden (report by Human Rights Watch andreport and letter by Amnesty International).132 In its reports on thesecases, the Commission has often described in detail the material pro-duced by NGOs, and in some cases attributed evidential value to it.133

One example of a different type of NGO involvement in the proceed-ings before the Commission is the case of Sutherland v. the United Kingdom,where the applicant was represented by a representative of the NGO‘Stonewall’, an organisation working for lesbian and gay equality.134

The Court

Bearing inmind that before 1998 private applicants were not consideredfull parties before the European Court of Human Rights, it is perhaps

131 Rules of Procedure of the European Commission of Human Rights (as in force at28 June 1993), Strasbourg, 1993.

132 Reports of the Commission in the cases of Gundem v. Turkey (Application No. 22275/93),3 September 1996, paras. 54, 147; Kilic v. Turkey (No. 22492/93), 23 October 1998, para.52; Aydin v. Turkey (No. 23178/94), 7 March 1996, paras. 59, 183; Nsangu v. Austria(No. 25661/94), 22 May 1995, para. 51; Bahaddar v. the Netherlands (No. 25894/92),13 September 1996, paras. 37, 51–55, 58–63; Paez v. Sweden (No. 29482/95), 6 December1996, paras. 26, 40–45. The case of Aydin v. Turkeywas also examined by the Court, seebelow. See also Harris, O’Boyle and Warbrick, Law of the European Convention on HumanRights, p. 589.

133 In the case of Paez v. Sweden, the NGO material was cited at length, see Paez v. Sweden(No. 29482/95), 6 December 1996, paras. 40–45. In the case of Gundem v. Turkey, at leastsome evidential value was attributed to the NGO material, see Gundem v. Turkey(No. 22275/93), 3 September 1996, para. 147.

134 He was also represented by a solicitor and a barrister. Sutherland v. The United Kingdom(Application No. 25186/94), 1 July 1997, para. 2.


not surprising that there were limited possibilities for amicus submis-sions.135 The first request from a non-party to submit information wasmade in 1978 in the case of Tyrer v. the United Kingdom.136 The NationalCouncil for Civil Liberties, which had represented the applicant beforethe Commission, asked for leave to file a written memorandum andmake oral submissions, but was refused by a chamber of the Court with-out explanation.137 The first time a permission to intervene was grantedwas in 1979, when the United Kingdom was allowed to submit writteninformation to be presented before the Court by delegates of theCommission in the case of Winterwerp v. The Netherlands.138 This submis-sion wasmade under Rule 38(1), which provided that the Chamber coulddecide to hear any personwhose evidence or statements seemed likely toassist it, either at the request of a Party or the Commission, or proprio

motu. In the case of Young, James andWebster v. the United Kingdom the Courtfor the first time accepted information submitted by an NGO, the TradesUnion Congress (TUC), using the same procedure as for the UK interven-tion in the Winterwerp case.139 A representative of the TUC was alsoallowed to make a presentation during the oral proceedings.140

In 1989, the Court amended its Rules of Procedure, incorporating asomewhat more permissive provision on non-party submissions:

The President may, in the interest of the proper administration of justice, inviteor grant leave to any Contracting State which is not a party to the proceedings tosubmit written comments within a time-limit and on issues which he shallspecify. He may extend such an invitation or grant such leave to any personconcerned other than the applicant.141

This provision remained in force until the coming into force of the11th Protocol in 1998. Under the old system, the scope of amicus inter-ventions was in other words restricted to the submission of writtencomments on issues specified by the President of the Court. It was also

135 On the other hand, the Inter-American Court of Human Rights has an extensive amicuspractice, although only the Inter-American Commission or state parties can refer casesto the Court, see section 6.7.

136 The European Court of Human Rights, Tyrer v. the United Kingdom, 24 April 1978.137 Shelton, ‘The Participation of Nongovernmental Organizations’, p. 630.138 Winterwerp v. the Netherlands, 24October 1979, para. 7 and Shelton, ‘The Participation of

Nongovernmental Organizations’, pp. 630–631.139 Young, James andWebster v. The United Kingdom, 13 August 1981, para. 8 and Shelton, ‘The

Participation of Nongovernmental Organizations’, p. 631.140 Young, James and Webster v. The United Kingdom, 13 August 1981, paras. 8–9.141 European Court of Human Rights, Rules of Court A (as in force at 1 February 1994),

Article 37(2).


a requirement for leave to be granted that the intervenor could demon-strate a discernible interest in the case – that the person was ‘concerned’by the case. In the case of Malone v. the United Kingdom, which dealt withalleged interference with telephone communications, the Post OfficeEngineering Union requested leave to submit written comments indicat-ing its ‘specific occupational interest’ in the case andwas granted leave tofile a brief.142 In the case of Ashingdane v. the UK, the National Associationfor Mental Health (MIND) was granted leave to submit comments in acase regarding the detention of a person in a psychiatric hospital. ThePresident specified, however, that the comments should be strictly limi-ted to certain matters which were closely connected with the case.143

The other requisite for leave to be granted was that the submission ofan amicus brief was ‘in the interest of the proper administration ofjustice’.144 The rationale in this regard was that the Court should haveas full information as possible before judging on the case. This seems tohave been the ground for the leave granted to NGOs with special exper-tise related to the central issue of the case. One example is the inter-vention of Amnesty International in the case of Soering v. the UnitedKingdom, which concerned the decision to extradite the applicant fromthe United Kingdom to the United States where he suffered the risk ofbeing sentenced to death.145 The President did on many other occasionsgrant leave to NGOs with special expertise to intervene as amicus curiae

withwritten comments on questions at issue in the case. From 1959 to theend of September 1998, the Court delivered 1,009 judgements. Amicus

curiae briefs were filed by NGOs in at least thirty-six of these cases.146

142 The President granted leave only ‘in so far as such matters relate to the particularissues of alleged violation of the Conventionwhich are before the Court for decision inthe Malone case’. Malone v. The United Kingdom, 2 August 1984, para. 8.

143 Ashingdane v. The United Kingdom, 28 May 1985, para. 6.144 Harris, O’Boyle and Warbrick, Law of the European Convention on Human Rights, p. 669.145 European Court of Human Rights, Soering v. the United Kingdom, 7 July 1989. See

also below.146 These cases have been identified through searches in the Council of Europe HUDOC

database. Since the references to amicus interventions are similar in the cases, thesearch terms are relatively easy to identify. It is, however, not possible to exclude theeventuality that leavemay have been granted also in other cases and that the referencehas been phrased differently in the judgement. Apart from the thirty-six cases whereleave for written comments has been granted, NGO material, such as country reportsfromAmnesty International, has been used by the applicants in other cases. InWeeks v.The United Kingdom, 2 March 1987, an NGO legal officer (of Justice, the British section ofthe International Commission of Jurists) acted as the applicant’s counsel. The thirty-six cases in which amicus curiae briefs were filed are: Malone v. The United Kingdom,August 1984; Ashingdane v. The United Kingdom, 28 May 1985; Lingens v. Austria, 8 July


Among the intervenors the five most active NGOs were AmnestyInternational (nine interventions), Article 19 (the International Centreagainst Censorship: nine), Interights (eight), Liberty (eight) and RightsInternational (eight). All these organisations are human rights NGOsbased in the United Kingdom, except for Rights International, which isbased in New York. Gomien, Harris and Zwaak observed regarding theCourt’s procedures during this period that – bearing in mind the import-ance of the case-law of the Court for the formulation of a commonEuropean human rights standard – it was surprising that third-party inter-ventions were so few.147 It can be mentioned in this context that legal aidwas not available for the purpose of amicus curiae briefs.148

The cases where an intervention was admitted demonstrate that thewritten comments submitted by NGOs had an impact on the Court insome, but far from all, cases. In twenty of the thirty-six cases in whichamicus briefs had been filed, the Court did not refer to the contents ofthe amicus submissions at all. In sixteen cases, the contents of the amicusbriefs were mentioned in the judgement, and six of these included amore extensive description.149 Amnesty International was involvedin all but one of the cases where a more elaborate description of the

1986;Monnell and Morris v. The United Kingdom, 2 March 1987; Capuano v. Italy, 25 June1987; Brogan and Others v. The United Kingdom, 29 November 1988; Soering v. The UnitedKingdom, 7 July 1989; The Observer and the Guardian v. The United Kingdom, 26 November1991; Sunday Times v. The United Kingdom, 26 November 1991; Open Door and DublinWell Woman v. Ireland, 29 October 1992; Brannigan and McBride v. The United Kingdom,26 May 1993; Infomationsverein Lentia and Others v. Austria, 24 November 1993; Otto-Preminger-Institut v. Austria, 20 September 1994; Jersild v. Denmark, 23 September 1994;Prager and Oberschlick v. Austria, 26 April 1995; McCann and Others v. The United Kingdom,27 September 1995; John Murray v. The United Kingdom, 8 February 1996; Goodwin v.The United Kingdom, 27 March 1996; Akdivar and Others v. Turkey, 16 September 1996;Chahal v. The United Kingdom, 15 November 1996; Wingrove v. The United Kingdom,25 November 1996; Saunders v. The United Kingdom, 17 November 1996; Laskey, Jaggardand Brown v. The United Kingdom, 19 February 1997; Gregory v. The United Kingdom,25 February 1997; Mantovanelli v. France, 18 March 1997; X, Y and Z v. The United Kingdom,22 April 1997; H. L. R. v. France, 29 April 1997; Halford v. The United Kingdom, 25 June1997; Aydin v. Turkey, 25 September 1997; Kurt v. Turkey, 25 May 1998; Incal v. Turkey,9 June 1998; Teixera de Castro v. Portugal, 9 September 1998; McGinley and Egan v.The United Kingdom, 9 June 1998; Sheffield and Horsham v. The United Kingdom, 30 July1998; Ahmed and Others v. The United Kingdom, 2 September 1998; and Assenov v. Bulgaria,28 October 1998.

147 Gomien, Harris and Zwaak, Law and Practice of the European Convention, p. 81.148 Harris, O’Boyle and Warbrick, Law of the European Convention on Human Rights, p. 669.149 The six cases were Brannigan and McBride v. The United Kingdom, 26 May 1993; John

Murray v. The United Kingdom 8 February 1996;Chahal v. The United Kingdom, 15November1996; Aydin v. Turkey, 25 September 1997; Kurt v. Turkey, 25 May 1998; Sheffield andHorsham v. The United Kingdom, 30 July 1998.


brief was made in the judgement. Of the nine cases where AmnestyInternational made an intervention, its comments were at least brieflydescribed in eight.150

The amicus briefs can be divided into two categories: statementsregarding the facts and statements regarding relevant law. From theperspective of legal personality, it can be argued that statements onlegal issues are more relevant as, to the extent that they are referred toby the Court, they indicate an influence on the interpretation anddevelopment of international law. However, statements regardingfacts are not irrelevant. Even though an NGOmight choose to intervenein a case of great interest with important information regarding facts –i.e. the treatment of prisoners in a certain country – its underlyinginterest might be that the Court clarifies or develops a certain area ofthe law.

It would be valuable therefore to take a closer look at a few examplesof the cases where amicus curiae briefs have been filed by NGOs.

In the case of Brannigan and McBride v. the United Kingdom (1993) theapplicants complained that they had not been brought promptly beforea judge during detention in breach of Article 5(3). They also complainedthat they did not have an enforceable right to compensation in breachof Article 5(5), and that there was no effective remedy in respect to theircomplaints in breach of Article 13.151

The detentions occurred in Northern Ireland under the 1984 Act, which pro-

scribed the Irish Republican Army (IRA) and conferred special powers of arrest

and detention on the police in order to deal with terrorism. In 1988, the UK

government had used the possibility under Article 15(1) of the Convention to

derogate in times of emergency from the obligations imposed by Article 5(3) to

the extent that the exercise of powers under the 1984 Act might be inconsistent

with the Convention.

The President of the Court granted leave to Amnesty International and the

Northern Ireland Standing Advisory Commission on Human Rights to submit

amicus briefs. Interights, Liberty and the Committee on the Administration of

Justice were also granted leave to submit a joint written statement.152

Amnesty International maintained in its submission that strict scrutiny was

required by the Court when examining derogation from fundamental procedural

guarantees which were essential for the protection of detainees at all times, and

150 Out of the eight amicus briefs filed by Rights International, none was described orreferred to in the judgement, while the contents of the briefs submitted by Interightswere briefly discussed in one of the eight cases in which it filed a brief.

151 Brannigan and McBride v. The United Kingdom, 26 May 1993. 152 Ibid., para. 5.


particularly in times of emergency. Liberty, Interights and the Committee on the

Administration of Justice (‘Liberty and Others’) submitted that, if states were to be

allowed amargin of appreciation at all, it should be narrower themore permanent

an emergency becomes. The Court found that the contracting parties had a wide,

but not unlimited, margin of appreciation in determining both the presence of an

emergency and the nature and the scope of derogations necessary to avert it. In

examining the question whether the state had gone beyond what was strictly

required by the exigencies of the crisis, the nature of the rights affected by the

derogation, the circumstances leading to and the duration of the emergency

situation should be taken into account.153

Concerning the question of a public emergency, it was suggested by Liberty and

Others in their written submissions that at the relevant time there was no longer

any evidence of an exceptional situation of crisis. In the view of the Standing

Advisory Commission on Human Rights, on the other hand, there was a public

emergency in Northern Ireland at the relevant time of a sufficient magnitude to

entitle the government to derogate. TheCourt considered there could be no doubt

that such a public emergency existed at the relevant time.154

As regards safeguards against abuse of detention power, Liberty and Others

and Amnesty International maintained that the safeguards were negligible and

that during the period of detention the detaineewas completely cut off from the

outside world. Amnesty International stressed that international standards

ruled out incommunicado detention by requiring access to lawyers and members

of the family, and submitted that being brought promptly before a judicial

authority in accordance with Article 5(4) was especially important since in

Northern Ireland habeas corpus had been shown to be ineffective in practice.

In the view of Amnesty International, Article 5(4) should be considered non-

derogable in times of public emergency. The Court found that, although sub-

missions had been made by the applicants and the NGOs concerning the

absence of effective safeguards against abuse, such safeguards did in fact exist

and provided an important measure of protection against arbitrary behaviour

and incommunicado detention.155

It came to the conclusion that the government had not exceeded its margin of

appreciation. The derogation was strictly required by the exigencies of the situa-

tion and satisfied the requirements of Article 15. The applicants could therefore

not validly complain of a violation of Article 5(3). It followed that there was no

obligationunderArticle 5(5) to provide the applicantswith anenforceable right to

compensation. The Court found no breach of Article 13.156

The fact that the Court described the arguments of the NGOs indicatesthat their viewpoints were considered. However, the majority was not

153 Ibid., paras. 42–43. 154 Ibid., paras. 45, 47. 155 Ibid., paras. 61–62.156 Ibid., paras. 62–76.


convinced by them. Two of the separate opinions gave considerablesupport to NGOs, however.

Judge Pettiti cited the Amnesty statement at length in his Dissenting Opinion.

He concluded, in accordance with this statement, that international law prohi-

bits incommunicado detention.157 Judge Martens took the amicus curiae briefs into

serious consideration in his concurring opinion. He stated, inter alia, that:

‘I would add, however, that I have voted in this way only after considerablehesitations. I was impressed by Amnesty International’s argument that under aderogation regular judicial review of extended detention is an essential guaran-tee to protect the detainee from unacceptable treatment – a risk which is all thegreater where there is the possibility of incommunicado detention – even if theprocedure to be followed does not meet fully the requirements implied inArticle 5 para. 3 . . . For my part, I found Amnesty International’s argumentsagainst so deciding persuasive, especially where Amnesty emphasised develop-ments in international standards and practice in answer to world-wide humanrights abuses under cover of derogation and underlined the importance of thepresent ruling in other parts of theworld. Consequently, I regret that the Court’sonly refutation of those arguments is its reference to a precedent which isfifteen years old.’

Judge Martens wrote further: ‘However that may be, the old formula was also

criticised as unsatisfactory per se both by Amnesty International and Liberty,

Interights and the Committee on the Administration of Justice, the latter

referring to the 1990 Queensland Guidelines of the ILA (International Law

Association). I agree with these criticisms.’158

The judgement in the case of Chahal v. the United Kingdom (1996) providesa good description of how an amicus curiae brief regarding facts and lawcan be used by the Court.159

The case concerned four applicants belonging to a Sikh family from the Punjab

province in India. The first applicant, the father and an Indian citizen, com-

plained, inter alia, that the UK authorities’ decision to deport him to India would

expose him to a real risk of torture or inhuman or degrading treatment in

violation of Article 3 of the Convention. The background to the complaint was

that the UK Home Secretary had decided that Mr Chahal should be deported, as

his continued presence in the UK was unconducive to the public good for

reasons of national security and other reasons of a political nature, namely

157 Ibid., Dissenting Opinion of Judge Pettiti.158 Ibid., Dissenting Opinion of Judge Martens, paras. 1, 3, 4.159 Chahal v. The United Kingdom, 15 November 1996.


the international fight against terrorism. A couple of days later, Mr Chahal

applied for asylum, in the United Kingdom. All the applicants also alleged

breaches of Article 8 and that they had not been providedwith effective remedies

before the national courts in breach of Article 13 of the Convention. They

maintained that the only remedy available to them in respect of their claims

was judicial review and an advisory panel procedure, none of which was a

‘remedy’, nor ‘effective’.160

Amicus briefs were filed in the case by Amnesty International, Justice and by

Liberty jointly with the Centre for Advice on Individual Rights in Europe (the

AIRE Centre) and the Joint Council for the Welfare of Immigrants ( JCWI), all

London-based human rights organisations.161 Amnesty International also sub-

mitted two reports alleging that the Punjab police was known to have carried

out abductions and executions of suspected Sikhmilitants in other Indian states

outside their jurisdiction, and that high-profile individuals continued to ‘dis-

appear’ in police custody.162

As regards the government’s argument that Article 3 could be subject to

implied limitations under exceptional circumstances, such as a threat to national

security, Amnesty International held that such an argument was erroneous and

dangerous, and that no derogation was allowed.163 This view was shared by

Liberty.164 The Court came to the same conclusion after a brief reference to the

amicus briefs.165

In its written submission, Amnesty also informed the Court that prominent

Sikh separatists still faced a serious risk of disappearance, detention without

charge or trial, torture and extra-judicial execution, frequently at the hands of

the Punjab police.166 The government urged the Court to proceed with caution

in relation to the reports prepared by Amnesty International since it was not

possible to verify the facts of the cases referred to and since the situation in

Punjab had changed in recent years.167 The Court, however, stated that it

attached ‘weight to some of the most striking allegations contained in those

reports, particularly with regard to extra-judicial killings allegedly perpetrated

by the Punjab police outside their home State’.168 It also referred to a judge-

ment by the UK Immigration Appeal Tribunal in another case and to materials

from the US State Department and the National Human Rights Commission for

160 Ibid., paras. 12, 68. 161 Ibid., para. 6.162 Punjab Police: Beyond the Bounds of the Law, Amnesty International, May 1995 and India:

Determining the Fate of ‘Disappeared’ in Punjab, Amnesty International, October 1995.Chahal v. The United Kingdom, 15 November 1996, paras. 55–56.

163 Written comments submitted by Amnesty International, received at the Court’sRegistry on 15 January 1996, pp. 5–6.

164 Written comments submitted by Liberty, received at the Court’s Registry on 24January 1996, pp. 7–11.

165 Chahal v. The United Kingdom, 15 November 1996, paras. 78–81.166 Ibid., paras. 89–90. 167 Ibid., para. 90. 168 Ibid., para. 99.


assessing the situation in Punjab.169 After a description of these different

reports, the Court stated that it was ‘persuaded by this evidence, which has

been corroborated by material from a number of different objective

sources’.170 The Court found the allegations substantiated that there was a

real risk of Mr Chahal being subjected to treatment contrary to Article 3 and

that the order for Mr Chahal’s deportation to India would, if executed, give rise

to a violation of the Article.171

As regards the question of alleged violation of Article 13, all of the amicus curiae

were of the view that judicial review did not constitute an effective remedy in

cases involving national security. Article 13 required at least that some inde-

pendent body should be appraised of all the facts and evidence and entitled to

reach a decision which would be binding on the Secretary of State. Amnesty

International, Liberty, the AIRE Centre and JCWI drew the Court’s attention to

the procedure applied in Canada, where a Federal Court judge holds an in camera

hearing of all the evidence, at which the applicant is provided with a statement

summarising the case and has the right to be represented and to call evid-

ence.172 The government pointed out that in previous cases the Court had

held that Article 13 required only a remedy that was ‘as effective as can be’ in

circumstances where national security considerations did not permit the divulg-

ing of certain sensitive information. The Court held, however, that the require-

ment of a remedy which is ‘as effective as can be’ was not appropriate in respect

of a complaint that a person’s deportation would expose him or her to a real

risk of treatment in breach of Article 3, where the issues concerning national

security were immaterial. In such cases the notion of an effective remedy

required independent scrutiny of the claim that there existed substantial

grounds for fearing a real risk of treatment contrary to Article 3. Such scrutiny

need not be provided by a judicial authority. After a discussion on the powers

and guarantees afforded by the judicial review and the advisory panel used

in the United Kingdom, the Court reached the conclusion that the remedies

taken together did not satisfy the requirements of Article 13.173

As in the case of Brannigan and McBride, the Court described the argu-ments of the amicus curiae in the judgement at some length. It seemsclear that at least the statements of facts submitted by AmnestyInternational as regards the situation in Punjab had some influenceon the Court’s findings.

169 Ibid. 170 Ibid., para. 100. 171 Ibid., para. 107. 172 Ibid., para. 144.173 Ibid., paras. 150–155. See further Iain Cameron, National Security and the European

Convention on Human Rights, The Hague and Uppsala: Kluwer Law International/IustusForlag, 2000, pp. 270–276.


In the case of John Murray v. the United Kingdom (1996), AmnestyInternational and Justice – the British Section of the InternationalCommission of Jurists – were granted leave to submit written com-ments. Briefs were also submitted jointly by the Committee on theAdministration of Justice, Liberty and British–Irish Rights Watch‘Liberty and Others’.174

The case concerned a British citizen, John Murray, who alleged that his rights

under Article 6 of the Convention had been violated for two reasons. First, he

had been deprived of the right to silence in the criminal proceedings against

him. Secondly, his right of access to a solicitor during his detention had been

violated. Moreover, he alleged that the fact that the practice concerning access

to solicitors differed between Northern Ireland, England and Wales was in

violation of Article 14 of the Convention.

Amnesty International submitted that permitting adverse inferences to be

drawn from the silence of the accused was an effective means of compulsion

which shifted the burden of proof from the prosecution to the accused and was

inconsistent with the right not to be compelled to testify against oneself or to

confess guilt. Amnesty pointed out that Article 14(3g) of the ICCPR explicitly

provides that an accused shall ‘not be compelled to testify against himself or to

confess guilt’, and also referred to other international legal instruments protect-

ing the right to remain silent. Liberty and Others made a submission of similar

content, while Justice stressed that such encroachments on the right to silence

increased the risk of miscarriages of justice.175

The Court stated that there could be no doubt that the right to remain silent

under police questioning and the privilege against self-incrimination were gen-

erally recognised international standards which lay at the heart of the notion of

a fair procedure under Article 6. It held, however, that the question whether the

right to silence was absolute must be answered in the negative. It could not be

said therefore that a decision on the part of the accused to remain silent

throughout criminal proceedings should necessarily have no implications

when the trial court sought to evaluate the evidence against him. In conclusion,

the Court did not consider that the criminal proceedings were unfair or that

there had been an infringement of the presumption of innocence. Accordingly,

there had been no violation of Articles 6(1) or 6(2).176

The applicant also submitted that he had been denied access to any legal

advice for forty-eight hours, and had been interviewed on twelve occasions

without a solicitor being present to represent his interests. Amnesty Inter-

national and Liberty and Others stressed that access to a lawyer when in

police custody is an integral part of well-established international standards

174 John Murray v. The United Kingdom, 8 February 1996, para. 5.175 Ibid., para. 42. 176 Ibid., paras. 44–58.


concerning protection against the dangers of incommunicado detention. It was

also a vital element in enabling access to the procedural guarantees of the courts

in respect of illegal detention. Both submissions stressed, inter alia, that in the

context of Northern Ireland where adverse inferences could be drawn from the

applicant’s failure to answer questions by the police it was particularly import-

ant to be assisted by a solicitor at an early stage. The Court observed that it had

not been disputed by the government that Article 6 applied even at the stage of

the preliminary investigation into an offence by the police. It found that the

applicant had undoubtedly been directly affected by the denial of access and the

ensuing interference with the right to defence and concluded that there had

been a breach of Article 6(1) in conjunction with 6(3) as regards the applicant’s

denial of access to a lawyer during the first forty-eight hours of his police

detention.177

The NGO submissionswere described in detail in the judgement and theCourt seems to have taken the arguments put forward into account. Inthe end, however, it reached a conclusion regarding the right to silencewhich differed from those of Amnesty as well as the other NGOs. Asregards the argument on the issue of access to a lawyer, the amicus briefsfocused on the right to access to lawyer in itself, without discussing theactual effects of the forty-eight hours of denial. Since the governmenthad not questioned that the applicant had the right to access to a lawyerduring the whole of the proceedings, the arguments put forward in thebriefs were not relevant in the Court’s discussion.

The case of Aydin v. Turkey (1997) originated in an application filed by aTurkish woman of Kurdish origin.178

Evidence proved beyond reasonable doubt that the applicant had been raped by

a state official and that she had also been subjected to other forms of physical

and mental suffering. Amnesty International intervened in the case with an

amicus brief observing that the rape of a female detainee by an agent of the state

for purposes such as the extraction of information or confessions or the humi-

liation, punishment or intimidation of the victim was considered as an act of

torture under current interpretations of international human rights stand-

ards.179 The Court did not refer to the amicus brief in its assessment. It found,

however, that ‘the accumulation of acts of violence inflicted on the applicant

and the especially cruel act of rape to which she was subjected amounted to

torture in breach of Article 3 of the Convention’, and added that it would have

reached that conclusion on either of those grounds taken separately.180 It is

177 Ibid., paras. 59–70. 178 Aydin v. Turkey, 25 September 1997.179 Ibid., para. 51. 180 Ibid., para. 86.


impossible to conclude from the text of the judgement what impact Amnesty’s

brief had on the Court’s reasoning.

The case of Sheffield and Horsham v. the United Kingdom (1998) concernedtwo transsexual persons who had changed sex.181

The applicants argued that refusal on the part of the United Kingdom to

annotate or update information inscribed on the register of birth to take

account of post-operative gender status constituted a breach of Article 8 of the

Convention, since this refusal led to situations where the applicants had to

disclose their previous names.182 The applicants also argued violations of

Articles 12, 14 and 13. The London-based NGO Liberty filed an amicus brief

containing a comparative legal study on the legal recognition of transsexuals.

Liberty suggested that there had been an unmistakably clear trend in the

member states of the Council of Europe towards giving full recognition to

gender reassignment. The organisation found that, out of thirty-seven countries

analysed, only four (including the United Kingdom) did not permit a change to

be made in a person’s birth certificate to reflect the re-assigned sex of the

person.183

The findings of the amicus brief were described in the judgement under the

heading ‘Other relevant materials’. The Court discussed Liberty’s investigation,

butwas ‘not fully satisfied that the legislative trends outlined by amicus suffice to

establish the existence of any common European approach to the problems

created by the recognition in law of post-operative gender status’. ‘In particular’,

the Court stated, ‘the survey does not indicate that there is yet any common

approach as to how to address the repercussions which the legal recognition of

sex may entail for other areas of law’.184

The Court did thus not seem to question the trustworthiness of theinvestigation, although it considered that its scope was too narrow.The Court held, by 11 votes to 9, that there had been no violation ofArticle 8. A joint partly dissenting opinion was filed by seven judges.This minority put considerable weight on the amicus brief:

Today, according to information submitted by Liberty in this case, twenty-threemember States (out of thirty-seven surveyed) permit such birth-certificateentries in respect of post-operative transsexuals and only four coun-tries . . . expressly prohibit any change. The position in the remaining States is

181 Sheffield and Horsham v. The United Kingdom, 30 July 1998.182 In the judgement, the terms ‘sex’ and ‘gender’ are used alternately; see, e.g., paras. 12–13.183 Sheffield and Horsham v. The United Kingdom, 30 July 1998, para. 35.184 Ibid., para. 57.


not clear. These figures in themselves – without needing to go into the varyingdetails of such legislation – demonstrate convincingly that the problems of suchtranssexuals are being dealt with in a respectful and dignifiedmanner by a largenumber of Convention countries.185

In the case of Kurt v. Turkey (1998), Amnesty International filed an amicusbrief on forced disappearances.

The applicant of the case was the mother of a man who had disappeared after

having been seen with Turkish security forces in a village in south-east

Turkey.186 The applicant held the Turkish government responsible for her

son’s disappearance and claimed breaches of, inter alia, Articles 2, 3 and 5. The

brief by Amnesty International was described in detail under the heading

‘Relevant international material’. Amnesty made a general analysis of the

crime of disappearances and referred to case-law from the UN Human Rights

Committee and the Inter-American Court of HumanRights.187 The Court did not

explicitly refer to the brief in its assessment of the legal issues of the case.

Because of lack of evidence, the Court did not find that there had been breaches

of Articles 2 or 3.188 It concluded that there had been a particularly grave

violation of Article 5, but did not mention Amnesty’s brief on disappearances

in this part of the judgement.189

One example of a case where the amicus briefs were only brieflydescribed is Soering v. the United Kingdom (1989), in which AmnestyInternational obtained leave to submit written comments.190 The caseconcerned the possible extradition from the United Kingdom of theapplicant, who had committed homicide in the United States andwho, in the event of an extradition, suffered the risk of being sentencedto death and thereby exposed to the ‘death row phenomenon’ (i.e. thatthe time spent on death row is so long that it in itself amounts to cruel,inhuman or degrading treatment). Amnesty International argued thatthe evolving standards in Western Europe regarding the existence anduse of the death penalty required that it should be considered as an

185 Ibid., Joint Partly Dissenting Opinion of Judges Bernhardt, Thor Vilhjalmsson,Spielmann, Palm, Wildhaber, Makarczyk and Voicu.

186 Kurt v. Turkey, 25 May 1998. 187 Ibid., paras. 68–71. 188 Ibid., paras. 106–117.189 Ibid., paras. 118–129.190 Soering v. The United Kingdom, 7 July 1989. For another example of a judgement where

the amicus submission is briefly described, see McCann v. The United Kingdom, 7 July1989, 27 September 1995, paras. 5, 157. In this case, Amnesty International, Liberty,Inquest, the Committee on the Administration of Justice and the British–Irish RightsWatch were granted leave to submit written comments.


inhuman and degrading punishment within the meaning of Article 3 ofthe Convention.191 The Court referred to and cited Amnesty’s brief, andconcluded that the exposure of the applicant to the ‘death row pheno-menon’ would in itself constitute a breach of Article 3.192

McGinley and Egan v. United Kingdom (1998) provides an example of themany cases where the comments submitted by NGOs were not men-tioned at all in the judgement.193 The case concerned two persons whohad been exposed to radiation from UK nuclear tests on ChristmasIsland in the Pacific Ocean druing 1957–8. Written comments weresubmitted by Liberty and The Campaign for Freedom of Information,while the New Zealand Nuclear Test Veterans’ Association was refusedleave to intervene.

The Court has refused leave for NGOs to submit amicus curiae briefs onseveral occasions. This happened in, inter alia, the case of Modinos v.Cyprus (1993), when the International Lesbian and Gay Associationsought leave to submit written comments, but was refused.194 InHarris, O’Boyle and Warbrick’s guide to the Court’s case-law, as well asinGomien,Harris andZwaak’s book, it is presumed that the interventionwas considered unnecessary because there was already settled case-lawon the issue in focus of the case.195 The Court has refused all applicationsfromNGOs for leave to submit written statements in at least another fivecases during the period before the Single Court system.196

In the case of Young, James and Webster v. the United Kingdom (1981)another kind of NGO intervention was made.197 The Court decidedproprio motu, in pursuance of Rule 38, para. 1, that during the oral pro-ceedings it would hear, on certain questions of fact (including English lawand practice) and for the purpose of information, a representative of theBritish TUC.198 The case concerned a ‘closed shop’ agreement betweenBritish Rail and three trade unions, providing that membership of one ofthose unions was a condition for employment. The British TUC thereforehad a close connection with the case. The organisation filed a memorial

191 Ibid., para. 101. 192 Ibid., paras. 102, 111.193 McGinley and Egan v. The United Kingdom, 9 June 1998.194 Modinos v. Cyprus, 22 April 1993, para. 4.195 Harris, O’Boyle and Warbrick, Law of the European Convention on Human Rights, p. 670;

Gomien, Harris and Zwaak, Law and Practice of the European Convention, p. 81.196 These cases are: Glasenapp v. Germany, 28 August 1986; Kosiek v. Germany, 28 August

1986; Y v. The United Kingdom, 29 October 1992;Ahmet Sadik v.Greece, 15 November 1996;Van Mechelen v. The Netherlands, 23 April 1997.

197 Young, James and Webster v. The United Kingdom, 13 August 1981. 198 Ibid., para. 8.


with submissions on fact and law, and the Court decided that it wouldtake the document into account as regarded factual information.199

When Protocol No. 11 entered into force in 1998, a new article onthird-party intervention was incorporated into the Convention.According to Article 36(2):

The President of the Court may, in the interest of the proper administration ofjustice, invite anyHigh Contracting Partywhich is not a party to the proceedingsor any person concerned who is not the applicant to submit written commentsor take part in hearings.

Thus, amicus participation which was earlier regulated only in the Ruleshas now become a permanent arrangement explicitly recognised by theparties to the Convention. Article 61(3) of the new Rules of Procedure,states that:

In accordance with Article 36(2) of the Convention, the President of the Chambermay, in the interests of the proper administration of justice, invite or grant leaveto any Contracting State which is not a party to the proceedings, or any personconcerned who is not the applicant, to submit written comments or, in excep-tional cases, to take part in a hearing. Requests for leave for this purpose must beduly reasoned and submitted in one of the official languages, within a reasonabletime after the fixing of the written procedure.200

As compared to the former rule on third-party intervention, which wasfound in Rule 37(2), the new Rules are more generous towards non-parties, as they explicitly provide for the possibility of taking part in ahearing. Apart from that, the content of the rule is the same in theold and new versions of the Rules, although the wordings are notidentical.201 Both Rules provide that an invitation or granting of leaveto a third- or non-party shall be in the ‘interest of the proper adminis-tration of justice’, and both Rules state that a person should be ‘con-cerned’ in order to be invited or granted leave.

It can also be observed that there are possibilities for NGOs to parti-cipate in proceedings before the Court under Rule 42 on Measures fortaking evidence. According to para. 1, a Chamber of the Court may, atthe request of a party or a third party, or of its own motion, obtain any

199 Ibid., para. 10.200 European Court of Human Rights, Rules of Court, Strasbourg 1999 (As in force at

1 November 1998).201 European Court of Human Rights, Rules of Court A, Strasbourg 1990 (as in force at

1 February 1994), Rule 37(2).


evidence which it considers capable of providing clarification of thefacts of the case. The Chamber may decide to hear as a witness or expertor in any other capacity any person whose evidence or statements seemlikely to assist it in the carrying out of its tasks. Under Rule 42(3), it mayalso ask any person or institution of its choice to obtain information,express an opinion or make a report on any specific point.

Since the new Court became operational on 1 November 1998 untilSeptember 2004, NGOs have submitted amicus briefs in at least thirty-one cases.202 In nine of these, the contents of the amicus submissionswere not described in the judgement, while there was a short account ofthe NGOs’ arguments in twelve cases. The remaining judgementsincluded a more thorough description of the amicus submissions.It seems to have become a practice in recent years to include a specialsection with a rather detailed description of amicus submissions in thejudgement, while these submissions are not explicitly referred to in theevaluating section.203 As before 1998, some NGOs, such as the EuropeanRoma Human Rights Centre, Liberty and Interights, have acted as amici

in several cases. Some NGOs also sometimes act as the victim’s repre-sentative – for example, the Kurdish Human Rights Project, Lawyers forHuman Rights, the AIRE Centre and Liberty.204

202 The cases were Beer and Regan v. Germany, 18 February 1999; T. v. The United Kingdom,16 December 1999; Waite and Kennedy v. Germany, 18 February 1999; V v. The UnitedKingdom, 16 December 1999; Khan v. The United Kingdom, 12 May 2000; Cha’are Timurtasv. Turkey, 13 June 2000; Shalom Ve Tsedek v. France, 27 June 2000; Chapman v. The UnitedKingdom, Beard v. The United Kingdom, Coster v. The United Kingdom, Lee v. The UnitedKingdom and Jane Smith v. The United Kingdom, all 18 January 2001; T. P. and K.M. v. TheUnited Kingdom, 10 May 2001; Z and Others v. The United Kingdom, 10 May 2001; Sadak andOthers v. Turkey, 17 July 2001; Nikula v. Finland, 21 March 2002; Pretty v. The UnitedKingdom, 29 April 2002; Kingsley v. The United Kingdom, 28 May 2002; Sadak and Othersv. Turkey (No. 2), 11 June 2002; I v. The United Kingdom, 11 July 2002; Christine Goodwin v.The United Kingdom, 11 July 2002; Mamatkulov and Abdurasulovic v. Turkey, 6 February2003; Sylvester v. Austria, 24 April 2003; Tahsin Acar v. Turkey, 6 May 2003; Pedersenand Baadsgaard v. Denmark, 19 June 2003; Hatton and Others v. The United Kingdom, 8 July2003; Karner v. Austria, 24 July 2003; M.C. v. Bulgaria, 4 December 2003; Nachova andOthers v. Bulgaria, 26 February 2004; von Hannover v. Germany, 24 June 2004; Vo v. France,8 July 2004.

203 See, e.g.,Nikula v. Finland, 21May 2002; Pretty v. The United Kingdom, 29 April 2002; I v. TheUnited Kingdom and Christine Goodwin v. The United Kingdom, 11 July 2002; Sylvester v.Austria, 24 April 2003; Tahsin Acar v. Turkey, 6 May 2003; Pedersen and Baadsgaard v.Denmark, 19 June 2003;M.C. v. Bulgaria, 4 December 2003;Nachova and Others v. Bulgaria,26 February 2004; Vo v. France, 8 July 2004.

204 Binbay v. Turkey, 21 October 2004; Michael Edward Cooke v. Austria, 18 February 2000;T. P. and K.M. v. The United Kingdom, 10 May 2001; A v. The United Kingdom, 17 December2002; and Prodan v. Moldova, 18 May 2004.


After having examined the different cases of amicus curiae participationof NGOs before the Court since the coming into force of the Single Courtsystem, a couple of points canbe raised concerning the Court’s interpreta-tion of the two requisites for such participation contained in Article 36(2)of the Convention. As described above, the President of the Court maygrant such leave (i) when this is in the interest of the proper administra-tion of justice, and (ii) when leave is sought by ‘anyHighContracting Partywhich is not a party to the proceedings or any person concerned who isnot the applicant’. The idea behind the first condition is clear, and itseems to be rather easily met by NGOs that are specialised in a particulararea. On the other hand, the requirement that an intervenor be ‘con-cerned’ is somewhat more surprising. In a couple of older cases fromthe time before the possibility of amicus participation was incorporatedinto the Convention, the condition of being ‘concerned’ (which was con-tained in the Rules of Procedure) wasmore strictly interpreted.205 Inmorerecent years, theCourt doesnot seem to requiremore in this regard thanageneral interest in the issue of the case. The question of being ‘concerned’is discussed in one of the more recent cases where three NGOs soughtleave to intervene. In the case of Karner v. Austria, where leave was soughtby ILGA-Europe (the European Region of the International Lesbian andGay Association), Liberty and Stonewall, the Court stated that:

The Court considers that the subject matter of the present application – thedifference in treatment of homosexuals as regards succession to tenanciesunder Austrian law – involves an important question of general interest notonly for Austria but also for other Member States of the Convention. In thisrespect the Court refers to the submissions made by ILGA-Europe, Liberty andStonewall, whose intervention in the proceedings as third parties wasauthorised as it highlights the general importance of the issue. Thus, the continuedexamination of the present applicationwould contribute to elucidate, safeguardand develop the standards of protection under the Convention.206

It thus seems that more persons and organisations are ‘concerned’ whenthe issue at stake is of general importance. In sum, it can be concludedfrom this case as well as the other cases with amicus curiae interventionsthat the condition of being ‘concerned’ has been given a generousinterpretation which allows for NGOs with a general interest in theissue to intervene, provided that this is in the interest of the proper

205 See, e.g.,Malone v. The United Kingdom, 2 August 1984, para. 8 and Ashingdane v. The UnitedKingdom, 28 May 1985; para. 6.

206 Karner v. Austria, 24 July 2003; para. 27 (emphasis added).


administration of justice – i.e. that they can demonstrate specific know-ledge which can be of assistance to the Court in reaching its decision.

It can be concluded regarding the European Court of Human Rightsthat, considering the high number of judgements delivered by the Court,amicus curiae submissions are not particularly frequent. On the otherhand, leave is seldom refused when requested, and the Court seems totake the amicus briefs into account when leave has been granted. This isdemonstrated by the fact that most judgements, in particular since 2002,include descriptions of the contents of the amicus briefs and that thearguments put forward are sometimes (although not often) commentedon in the Court’s own reasoning. It should, however, also be noted thatmany briefs are very detailed, whichmeans that the descriptions that aremade in the judgements are only a minor portion of what has actuallybeen submitted.207 It is also worth observing that submissions from thelarge and well-established NGOs often seem to be more seriously consid-ered by theCourt than briefs submittedby lesswell-knownorganisations.

6.6 The European Court of Justice

The Statute of the European Court of Justice, its Rules of Procedure, andthe Rules of the Court of First Instance all lack an explicit legal basis foramicus curiae submissions. The Advocates General have been given asimilar task within the framework of the ECJ itself, as they deliverimpartial and independent opinions on cases brought before theCourt. It can therefore be argued that there is less need, from theCourt’s point of view, for amicus submissions. Nevertheless, Article 40of the Statute provides a possibility for intervention by states andCommunity institutions, and by persons with an interest in the case:

Member States and institutions of the Communitymay intervene in cases beforethe Court.

The same right shall be open to any other person establishing an interest inthe result of any case submitted to the Court, save in cases between Member

207 This is at least the case with the following briefs:Written comments submitted by Interightsand Article 19 in the case of Wingrove v. The United Kingdom; Third Party Intervention of Liberty,Interights and the Committee on the Administration of Justice in the case of Brannigan andMcBride v. The United Kingdom; Written comments submitted by Justice in the case ofChahal v. The United Kingdom;Written comments submitted by Amnesty International in the caseof Chahal v. The United Kingdom; and Written comments submitted by Liberty in the case ofChahal v. The United Kingdom.


States, between institutions of the Community or between Member States andinstitutions of the Community . . .

Submissions made in an application to intervene shall be limited to support-ing the submissions of one of the parties.208

This provision applies also to the CFI.209 Evidently, the purpose of theprovision is to give persons and entities a possibility to intervene inorder to protect a previously established interest in the result of thecase. This requirement contrasts with the possibilities for amicus parti-cipation before other international tribunals, such as the EuropeanCourt of Human Rights or the ICTY, where the President of the Courtmay invite anyone to submit a statement, if this is in the interest of theproper administration of justice. Even though the initiative for such anamicus submission well may come from the intervenor, the basis for theintervention is the Court’s interest that the information in the case be ascomplete as possible. The intervening person or body in such cases is afriend of the court, an amicus curiae, while the intervenor under Article 40of the ECJ Statute seeks to protect proper interests in the case. Thetwo categories of intervention thus have different purposes. I will there-fore not use the term ‘amicus curiae’ for interventions made in casesbefore the ECJ and the CFI.

According to Article 93(1)(f) of the Rules of the European Court ofJustice, the applications for leave submitted under this provision mustcontain a statement explaining the circumstances establishing a rightto intervene.210 The level of interest must be direct and concrete. Thesignification of this requirement is well illustrated by the case of CASSucchi di Frutta SpA v. Commission of the European Communities, in which theCFI stated that:

For the purposes of granting leave to intervene, the Community judicaturemustascertain, in the case of an action for annulment, whether the applicant for suchleave is directly affected by the contested decision and whether his interest inthe result of the case is established. Similarly, the prospective intervener mustestablish a direct, existing interest in the grant of the order as sought and not an

208 Protocol on the Statute of the Court of Justice annexed to the Treaty on European Union, signed atNice on 26 February 2001, as last amended on 19 April 2004. As with section 5.3 onNGOs as parties before the ECJ and CFI, this survey will be limited to cases lodgedunder the EC Treaty.

209 According to Article 53 of the Statute, Title III on Procedure shall apply to the CFI, withcertain possibilities for modifications.

210 Rules of Procedure of the Court of Justice of the European Communities, 19 June 1991, lastamended on 8 April 2003.


interest in relation to the pleas in law put forward. The interest necessary in thisrespect must not relate merely to abstract legal arguments but to the actualform of order sought by a party to the main action. More specifically, it isnecessary to distinguish between prospective interveners establishing a directinterest in the ruling on the specific act whose annulment is sought and thosewho can establish only an indirect interest in the result of the case by means ofsimilarities between their situation and that of one of the parties.211

For an organisationwishing to intervene, it is required that it representsmembers who have a direct and concrete interest in the case.

The case of Ludwigshafener Walzmuhle Erling KG v. European Economic Community

concerned an action which had the purpose of obtaining compensation for loss

which the applicants claimed to have suffered as a result of the Community

having fixed an inappropriate price for durum wheat.212 A trade union applied

for leave to intervene stating that, depending on the outcome of the case, many

skilled workers employed by the applicant undertakings stood to lose their

employment and, as a result of the fixing of excessive prices for imports of

durum wheat from non-member countries, a number of jobs had already been

directly affected in previous years. The Court found that:

In its capacity as an organization representing workers employed in the indus-trial sector in which the applicant undertakings are engaged, the applicanttrade union has no specific interest in any payment of compensation to thoseundertakings. The purpose of the union’s application to intervene is to supportjudicial proceedings which, if successful, could have a favourable impact onthe economic well-being of the undertakings in question and, consequently, onthe number of persons they employ. Such an interest, which is indirect andremote in its nature, is not sufficiently clearly defined to justify interventionin the proceedings.213

An older case regarding consumers, Generale Sucriere v. The Commission, isof a more permissive character.214

The Unione Nazionale Consumatori (the National Consumers’ Union of

Italy) sought leave to intervene in the case, which concerned application of

211 CAS Succhi di Frutta SpA v. Commission of the European Communities, Case T-191/96, Order ofthe Court of First Instance, 20 March 1998.

212 LudwigshafenerWalzmuhle Erling KG v. European Economic Community, Joined cases 197–200/80, 243, 245, 247/80, European Court of Justice, Order of the Court, 8 April 1981.

213 Ibid., paras. 8–9.214 Societe anonyme Generale Sucriere and Others v. Commission of the European Communities,

Joined cases 41/73, 43–48/73, 50/73, 111/73, 113/73, 114/73, European Court of Justice,Order of the Court, 11 December 1973.


community provisions in the field of competition in the Italianmarket. According

to its statute, the Union’s objective was ‘the representation and protection . . . of

all Italian consumers . . . in judicial proceedings’, where ‘the interests of the

whole category of consumers or of a considerable part of the latter are in issue’.

Further, it was the Union’s intention to ‘contribute to the abolition of obstacles

imposed by the market and by institutions upon the free competition of produ-

cers and traders and upon the free and conscious choice of consumers’. The

Court stated that ‘since it is the particular objective of the union to represent

and protect consumers, it can show an interest in the correct application of

community provisions in the field of competition, which not only ensure that

the common market operates normally but which also tend to favour

consumers . . . Accordingly, the intervention must be permitted insofar as it

supports the submissions of the commission with regard to its finding as to

the protection of the Italian market’.215

Legal personality is not a condition for permission to intervene. TheCourt has held that an entity may intervene if it is sufficientlyindependent and responsible to function as a separate identity. Inthe case of Generale Sucriere v. The Commission, the Unione NazionaleConsumatori was admitted to intervene, although it was not a legalperson. The Court held that ‘bodies not having legal personality may bepermitted to intervene if they display the characteristics which are atthe foundation of such personality, in particular, the ability, howevercircumscribed, to undertake autonomous action and to assumeliability’.216

Article 40 of the ECJ Statute provides a narrow scope for the inter-venors’ submissions: these ‘shall be limited to supporting the submis-sions of one of the parties’. Moreover, interventions by private partiesare allowed only in cases between another private party and a memberstate or Community institution. Nor can private parties intervene inactions for preliminary rulings, as these are not ‘cases before the Court’within the meaning of Article 40, para. 1.217 On the other hand, once an

215 Ibid., paras. 5, 7, 8. See also Richard Plender, ‘Intervention’, in Richard Plender (ed.),European Courts: Practice and Precedents, London: Sweet & Maxwell, 1997, p. 633.

216 Societe anonyme Generale Sucriere and Others v. Commission of the European Communities,Joined cases 41/73, 43–48/73, 50/73, 111/73, 113/73, 114/73, European Court of Justice,Order of the Court, 11 December 1973, para. 3. See also Chinkin, Third Parties inInternational Law, p. 221 and Shelton, ‘The Participation of NongovernmentalOrganizations’, p. 629 (n. 117), and Plender, ‘Intervention’, p. 629.

217 Chinkin, Third Parties in International Law, p. 220; Plender, ‘Intervention’, p. 615; NevilleMarch Hunnings, The European Courts, London: Cartermill Publishing, 1996, p. 78.


intervention has been accepted, the intervenor is regarded as a partyto the case. Documentation served on the parties is provided also to theintervening party, however with the possibility of omitting secret con-fidential documents.218

Because of the requirements for intervention in direct actions,it would be a matter of coincidence if an NGO had the possibility tointervene in a case of more general or political interest. Interventionshave nonetheless been made by a great variety of associations andorganisations. There are many examples of trade unions intervening,which is a category of cases which often involve issues of great interestto many employees.

For example, the Union Syndicale-Bruxelles, which represented officials of the

European Communities, applied for leave to intervene in the case of Mireille

Meskens v. European Parliament.219 The Union alleged that its members had given

it general authority to defend by all legal means their professional interests,

both economic and non-material, where those interests were common. It con-

sidered that the pleas in law put forward by the applicant in support of her

action raised questions of principle relating to the organisation of the European

civil service. The defendant expressed reservations with regard to the interven-

tion, stating that the Union had not established an interest in taking part in the

proceedings. The CFI stated that:

The question as to what are the duties of a Community institution following theannulment of a decision rejecting the application of some of its staff to take partin a competition comes within the sphere of collective interests the defence ofwhich is one of the objects of the Union Syndicale, as stated in its statutes. Inthose circumstances, the Union Syndicale’s application to intervene must begranted.220

218 Rules of Procedure, Article 93(3).219 Mireille Meskens v. European Parliament, Case T-84/91, Order of the Court of First Instance,

12 March 1992.220 Ibid., para. 14. Other examples of cases where trade unions have sought leave to

intervene are LudwigshafenerWalzmuhle Erling KG v. European Economic Community, Joinedcases 197–200/80, 243, 245, 247/80, European Court of Justice, Order of the Court,8 April 1981 (application dismissed as ill-founded) and G. R. Amylum NV and Others v.Council and Commission of the European Communities, Joined cases 116, 124, 143/77,European Court of Justice, Order of the Court, 12 April 1978. The ECJ rejected theapplication with the following argument: ‘Since the third paragraph of Article 37of the above-mentioned statute limits the conclusions contained in an applicationto intervene in support of the conclusions of one of the parties in the main action,it follows that the interest in question must exist in relation to the said conclusionsand not in relation to the submissions or arguments put forward. This is not the case inthe present proceedings’: Ibid., paras. 7–8.


Other bodies which have sought leave to intervene include organisa-tions of small enterprises, transport associations and producers’ orga-nisations of different kinds.221

It can be concluded that the scope for NGOs to advocate public inter-ests through intervention in cases before the ECJ and the CFI is limited.Nevertheless, the Court’s conclusion in the case of Generale Sucriere v. TheCommission shows that representative organisations do have a possibilityof showing an established interest within the field of their objective.

6.7 The Inter-American Commission and Courtof Human Rights

The Inter-American Commission

The Commission occasionally permits amicus interventions by NGOsand other private bodies, in spite of the fact that an explicit legal basisfor such submissions is lacking in the American Convention on HumanRights, the Commission’s Statute and its Rules of Procedure.222 In 2002,the Commission addressed the question of amici curiae in its AnnualReport. In the case of Mary and Carrie Dann v. United States, there wereamicus submissions from a number of entities and persons, includingseveral tribes. The Commission stated that:

After having reviewed the requests for intervention set forth above and therelated amici briefs, the Commission considered that they essentially reiteratedarguments already presented by the Petitioners and accordingly did not requirefurther processing in these proceedings.223

Although the Commission decided not to consider the amici briefs, itclearly confirmed its capacity to receive such briefs and to consider

221 See, e.g., Union Europeenne de l’Artisanat et des Petites et Moyennes Entreprises(UEAPME) v. Council of the European Union, Case T-135/96, Order of the Court of FirstInstance, 18March 1997,Atlantic Container Line AB and Others v. Commission of the EuropeanCommunities, Case T-395/94 R, Order of the President of the Court of First Instance,10 March 1995 and Asociacion Espanola de Empresas de la Carne v. Council of the EuropeanUnion, Case T-99/94, Order of the Court of First Instance, 20 October 1994.

222 American Convention on Human Rights (1969), Statute of the Inter-American Commissionon Human Rights, adopted in October 1979, Rules of Procedure of the Inter-AmericanCommission On Human Rights, adopted in December 2000. This has also been confirmedby a staff attorney with the Commission (e-mail message of 27 September 2001, on filewith the author).

223 OEA/Ser.L/V/II.117, Annual Report of the Inter-American Commission on Human Rights 2002,March 7, 2003, Report No. 75/02, para. 34.


them, when it wishes to. Despite the fact that there are otherwise veryfew explicit references to amicus curiae interventions in the Annual

Reports of the Commission, material prepared by NGOs has been sub-mitted in other cases, by both the petitioner and by the NGOs them-selves.

In the case of Amparo Tordecilla Trujillo v. Colombia, the Commission received

‘reports and information on the facts of the case from non-governmental

human rights organizations such as Justice et Paix and Amnesty International’.

Also, the Colectivo de Abogados ‘Jose Alvear Restrepo’ joined the case as a co-petitioner.

The Commission did not refer to the NGO reports in its analysis of the merits

of the case.224

Ignacio Ellacurıa, S. J. et al. v. El Salvador originated in an application filed by the

NGO Americas Watch. The petitioners presented a report prepared by the

organisation Christian Legal Aid ‘Archbishop Oscar Romero’. Subsequently,

the Lawyers’ Committee for Human Rights replaced Americas Watch as the

petitioner in the case, and presented additional information.225

In Desmond McKenzie v. Jamaica and four other cases described in the same

Annual Report, the petitioners filed material from various governmental and

non-governmental organisations concerning prison conditions in Jamaica.

In the Carl Baker case, material produced by Americas Watch, the Jamaica

Council for Human Rights and Amnesty International was submitted. The

Commission commented on the contents of this material in its analysis

of the cases, citing a part of an Americas Watch Report. It noted that the

respondent state had criticised the reports as being out of date and indicated

that there had been improvements in prison conditions since the reports

were prepared. The Commission observed that the state had, however, not

provided the Commission with any specific information with regard to such

improvements.226

In the case of Rafael Ferrer-Mazorra et al. v. the United States, the petitioner

submitted two reports of the Minnesota Lawyers International Human Rights

Committee.227 The Commission did not refer to the material in its analysis of

the case.

224 OEA/Ser.L/V/II.106, Annual Report of the Inter-American Commission on Human Rights 1999,April 13, 2000, Report No. 7/00, Amparo Tordecilla Trujillo v. Colombia, para. 4.

225 Ibid., Report No. 136/99, Ignacio Ellacurıa, S. J. et al. v. El Salvador, paras. 7–8.226 Ibid., Report No. 41/00, Desmond McKenzie et al. v. Jamaica, paras. 9, 81–82, 275–276.227 OEA/Ser.L/V/II.111, Annual Report of the Inter-American Commission on Human Rights 2000,

April 16, 2001, Report 51/01, Rafael Ferrer-Mazorra et al. v. the United States, paras.19(d) and (f).


It should be noted that it was only in the first of these cases that theNGOs themselves had submitted material, while in the other cases thepetitioner used reports prepared by NGOs to support their claim.

A case report on admissibility from 1997 demonstrates that NGOparticipation in the Commission’s proceedings can also take the formof oral expert intervention.

The case ofMarıa Eugenia Morales de Sierra v. Guatemalawas instituted bymeans of

a petition in abstracto concerning various provisions of the Guatemalan Civil

Code, which allegedly created discriminatory distinctions between men and

women within marriage in breach of Articles 2, 17 and 24 of the Convention.

The petitioners later modified their communication and named Marıa Eugenia

Morales de Sierra as an individual victim. During a hearing on the question of

admissibility, the petitioners produced three experts who testified as amici curiae

to support the standing of Marıa Eugenia Morales de Sierra as a direct victim in

the case. The amiciwere experts from Interights, the Center for Civil and Human

Rights at Notre Dame Law School, and one person representing both the

International Women’s Human Rights Law Clinic and the Concertacion de

Mujeres Activistas Para los Derechos Humanos. The experts, citing case-law

from the monitoring bodies of the ECHR, asserted that members of a class

targeted by legislation which is discriminatory on its face were to be considered

victims for the purpose of bringing petitions. Interights also submitted written

statements which are not mentioned in the Commission’s report.228 The state,

for its part, indicated that Marıa Eugenia Morales had not in reality suffered any

harm by the disputed legislation.

The Commission stated that, with respect to its jurisdiction ratione personae, its

competence under the individual case process pertained to facts involving the

rights of a specific individual or individuals. With regard to the standing of the

petitioner in the case as a victim, the Commission held that international jur-

isprudence had established that a lawmay violate the right of an individual, even

in the absence of any specific measure of subsequent implementation by the

authorities, if the individual is directly affected or is at imminent risk of being

directly affected by a legislative provision. In this context, the Commission cited

the same cases from the European Convention monitoring bodies as the amicus

curiae had mentioned. The Commission concluded that the direct effect of the

challenged legislative provisions on the rights and daily life of the victim had

been adequately demonstrated, and declared the case admissible.229

228 Written Comments Submitted by Interights, the International Centre for the Legal Protection ofHuman Rights, in Case No. 11.625 between Marıa Eugenia Morales de Sierra and Guatemala,provided by the organisation.

229 Annual Report of the Inter-American Commission on Human Rights 1997, February 17, 1998,Report No. 28/98, Marıa Eugenia Sierra v. Guatemala. For the amicus curiae intervention,see para. 16.


It thus seems that the oral intervention of the NGOs influenced theCommission’s conclusion in the case. The Commission’s report onDesmond McKenzie and the other cases against Jamaica mentioned abovegive the same impression. It can also bementioned that the Commissionin a couple of other cases referred to an amicus curiae brief which AmnestyInternational had submitted in a case before the Inter-AmericanCourt.230

The report on the case of Juan Carlos Abella v. Argentina describes aninteresting discussion on the value of NGO material.

The case concerned an attack that was carried out by forty-two armed persons

against military barracks at La Tablada in the province of Buenos Aires in 1989.

The attack precipitated a thirty-hour combat between the attackers and

Argentine military personnel, resulting in the deaths of twenty-nine of the

attackers and several state agents. In their complaint, the petitioners alleged,

inter alia, that after the fighting had ceased, state agents participated in sum-

mary executions, the disappearance of several persons and the torture of a

number of attackers. Amnesty International undertook a detailed study of the

events at La Tablada, the relevant parts of which were used in the Commission’s

case report. The NGO carried out interviews, analysed autopsies with the help of

forensic experts and gatheredmedical information on injuries on the detainees.

The state questioned Amnesty’s report and the probative value which the

Commission assigned to it, in so far as ‘it cannot be assumed that it was prepared

as thoroughly as a report of the Inter-American Commission on Human Rights

would be’. The Commission stated:

The Commission will refer, firstly, to the probative value which it attaches tothe report of Amnesty International, which was apparently challenged by theState as one of the elements of proof to support several conclusions contained inreport 22/97, particularly those relating to the inadequacy of the autopsies carriedout on the corpses of the attackers, as well as the treatment which the attackersreceived in the days following the recapture of the RIM 3 barracks in La Tablada.The Inter-American Court has recognized the authority of an international organto freely evaluate proof, stating that ‘for an international tribunal, the criteria forevaluating proof are less formal than in internal legal systems’. Consequently,probative elements which are different from direct proof, such as circumstantialevidence, clues, presumptions, press articles and, where relevant, reports of non-governmental organizations may be used, provided that the conclusions drawn

230 OEA/Ser.L/V/II.102, Annual Report of the Inter-American Commission on Human Rights 1998,April 16, 1999, Report No. 50/99, Hector Felix Miranda v.Mexico, para. 27, and OEA/Ser.L/V/II.106, Annual Report of the Inter-American Commission on Human Rights 1999, April 13,1999, Report No. 130/99, Vıctor Manuel Oropeza v. Mexico, n. 16. In both cases, theCommission referred to a memorial on impunity submitted by Amnesty Internationalin the case of Consuelo Benavides Cevallos v. Ecuador before the Court.


therefrom are consistent with the facts and corroborate the testimony or eventsalleged by the complainants. Assigning this power of discretion to an interna-tional organ is particularly relevant, ‘in cases involving the violation of humanrights in which the State cannot allege as its defence the complainant’s inabilityto provide proof which, inmany cases, cannot be obtained exceptwith the State’scooperation’. Taking these principles into consideration and in the face of thenear absolute silence of the State, theCommission basedpart of its considerationsin the present case on the report of Amnesty International. That report, inaddition to corroborating the substance of the petitioners’ complaints, permittedconclusions to be drawn that were consistent with the facts, in so far as it wasbased on information gathered directly at the place where the events took placeand immediately after their occurrence.231

It has thus been demonstrated that the Commission does accept amicus

submissions from NGOs and that it seems to give weight to such mate-rial. However, the NGO interventions are relatively few. According to astaff attorney with the Commission, the Commission rarely receivesamicus briefs. One explanation may be the lack of explicit legal basis inthe Commission’s Rules of Procedure, since it might lead potential amicito believe that briefs will be rejected. Another explanation may be thatthe proceedings before the Commission are usually confidential.Accordingly, NGOsmay not be informed of the cases which are pendingbefore it.232A third possible explanation is that NGOs often act as peti-tioners in cases before the Commission, which can be regarded as astronger position than that of an amicus.233

Another possibility for NGOs is to join the petitioner as co-petitionerbefore the Commission. This occurred in the cases of Monsignor Oscar

Romero v. El Salvador and Leonel de Jesus Isaza Echeverry v. Colombia, wherethe organisation CEJIL joined the original petitioners.234

The Inter-American Court of Human Rights

The Inter-American Court has an extensive amicus curiae practice. As thispractice differs between its contentious jurisdiction and its advisoryjurisdiction, I shall deal with these two categories separately.

231 Annual Report of the Inter-American Commission on Human Rights 1997, February 17, 1998,Report No. 55/97, Juan Carlos Abella v. Argentina, paras. 403–408.

232 E-mail message of 27 September 2001, on file with the author.233 On the standing of NGOs before the Commission, see section 5.3.234 OEA/Ser.L/V/II.106, Annual Report of the Inter-American Commission on Human Rights 1999,

April 13, 1999, Report 37/00, para. 7, and OEA/Ser.L/V/II.111, Annual Report of theInter-American Commission on Human Rights 2000, April 16, 2001, Report No. 64/01, para. 7.


Contentious cases

There is no explicit legal basis in the Convention or in the Statute of theCourt for amicus curiae interventions in the Court’s contentious proceed-ings.235 Nor did the old Rules of Procedure,whichwere still in forcewhenthe Court examined the cases discussed below, include any such provi-sion.236 Article 34(1) of those Rules, however, gave a broad competencefor the Court as regards evidence and information in contentious cases:

The Court may, at the request of a party or the delegates of the Commission, orproprio motu, decide to hear as a witness, expert, or in any other capacity, anyperson whose testimony or statements seem likely to assist in carrying out itsfunction.237

Thomas Buergenthal, who is an ex-President of the Court, has arguedthat since this provision authorised the Court proprio motu to hearpersons whose statements might assist it in carrying out its function,it could also be regarded as permitting the receipt of amicus briefs.238

According to Scott Davidson, the provision appeared to provide theCourt with an appropriate constitutional basis for the Court to receivesuch submissions.239

In 1985, when Buergenthal wrote his article, the Court had beenoperational for only a few years, and no amicus briefs had yet beensubmitted in a contentious case.240 Since then, the Court has clearlydemonstrated its position on the issue of amicus submissions by accept-ing the filing of briefs inmany cases and by formally noting its receipt ofthem in each case where such a submission has been made. In June2001, new Rules of Procedure for the Court entered into force. Althoughthere is no new rule on amicus submissions in contentious cases, thenew rule on Procedure for Taking Evidence provides the Court with as broadcompetence as the old Rules did.241

235 Statute of the Inter-American Court of Human Rights, October 1979.236 Rules of Procedure of the Inter-American Court of Human Rights, adopted on January 9–18,

1991, amended on January 25, 1993.237 Ibid.238 Thomas Buergenthal, ‘The Advisory Practice of the Inter-American Human Rights

Court’, 79 AJIL (1985), p. 15.239 Scott Davidson, The Inter-American Human Rights System, Aldershot: Dartmouth,

1997, p. 147.240 Buergenthal, ‘The Advisory Practice of the Inter-American Human Rights Court’, p. 15.241 Article 45 of the new Rules is similar to the former Article 34. Rule 45(1) provides that

‘The Court may, at any stage of the proceedings: Obtain, on its own motion, anyevidence it considers helpful. In particular, it may hear as a witness, expert witness,


Of the forty-four contentious cases in which judgements have beendelivered on themerits (judgements on competence, preliminary objec-tions, reparation, interpretation of previous judgements, etc. thusexcluded), NGOs have submitted amicus curiae briefs in seventeen casesat the merits stage of the proceedings.242 The cases in which NGOsintervened as amici include the following examples.

In Loayza Tamayo v. Peru, amicus curiae briefs were presented by a foundation,

Fundacion Ecumenica para el Desarrollo y la Paz (FEDEPAZ) and an individual

concerning the principle of non bis in idem. Peru applied that the amicus briefs

should be declared inadmissible. The President of the Court informed the state

that ‘documents of this type are added to the file without being formally

incorporated into the record of the proceedings’ and that the Court would

evaluate those documents in due course.243 No further discussions on the amicus

briefs were included in the judgement.

In Bamaca Velasquez v. Guatemala, the International Commission of Jurists pre-

sented an amicus curiae brief on the right to truth for the next of kin to victims of

forced disappearances.244 The organisation argued, inter alia, that the right to

truthwas an established principle of international humanitarian law and implicit

in international human rights law, as well as in the Convention in so much as

Article 29(c) prohibited interpretations of the Convention which preclude ‘rights

or in any other capacity, any personwhose evidence, statement or opinion it deems tobe relevant.’ According to Rule 44(3), the Court may: ‘Request any entity, office, organor authority of its choice to obtain information, express an opinion, or deliver a reportor pronouncement on any given point.’ Rules of Procedure of the Inter-American Court ofHuman Rights, Approved by the Court during its XLIX Ordinary Period of Sessions, heldfrom November 16–25, 2000, and partially reformed by the Court during its LXIOrdinary Period of Sessions, held from November 20–December 4, 2003.

242 Inter-American Court of Human Rights, Series C: Decisions and Judgments, No. 4,Velasquez Rodrıguez v. Honduras, July 29, 1988, para. 38; No. 5, Godınez Cruz v. Honduras,January 20, 1989, para. 40; No. 6, Fairen Garbi and Solıs Corrales v. Honduras, March 15,1989, para. 47; No. 16, Gangaram Panday v. Surinam, January 21, 1994, para. 37; No. 30,Genie Lacayo v. Nicaragua, January 29, 1997, para. 41; No. 33, Loayza Tamayo v. Peru,September 17, 1997, para. 21; No. 35, Suarez Rosero v. Ecuador, November 12, 1997,para. 20, n. 2; No. 38, Benavides Ceballos v. Ecuador, June 19, 1998, paras. 24, 31; No. 56,Cesti Hurtado v. Peru, September 29, 1999, para. 34, n. 2; No. 63, Villagran Morales et al. v.Guatemala, November 19, 1999, n. 1; No. 70, Bamaca Velasquez v. Guatemala, November25, 2000, para. 64; No. 71, Case of the Constitutional Court v. Peru, January 31, 2001,para. 19; No. 72, Baena Ricardo et al. v. Panama, February 2, 2001, para. 46; No. 74, IvcherBronstein v. Peru, February 6, 2001, paras. 27, 43; No. 79, The Mayagna (Sumo) Awas TingniCommunity v.Nicaragua, August31, 2001, paras. 38, 41, 42, 52, 61;No. 98, Five Pensioners v.Peru, February 28, 2003, para. 47; and No. 107, Herrera-Ulloa v. Costa Rica, July 2, 2004,paras. 39–41, 45, 47, 49, 52.

243 Inter-American Court of Human Rights, Series C: Decisions and Judgments, No. 33,Loayza Tamayo v. Peru, September 17, 1997, paras. 21, 22.

244 Ibid., No. 70, Bamaca Velasquez v. Guatemala, November 25, 2000, para. 64.


or guarantees that are inherent in the human personality’. It was further stated

that the right extended not only to the fate of the disappeared but to the reason

for the disappearance, the totality of the circumstances surrounding the disap-

pearance and the identity of all persons complicit in the act.245 The Court briefly

mentioned the subject of the brief in the judgement. While the Court found

violations of several rights enshrined in the Convention, it did not find a violation

of the right to truth. Judge Cancado Trindade supported a right to truth in his

separate opinion.

In Baena Ricardo et al. v. Panama, the NGOs Centro de Asesorıa Laboral del Peru,

Centro de Derechos Economicos y Sociales, Centro de Estudios Legales and the

Colombian Commission of Jurists submitted a joint amicus brief.246 There is no

description of the contents of the brief in the judgement.

In the case of The Mayagna (Sumo) Awas Tingni Community v. Nicaragua, several

different entities and one individual submitted written amicus briefs. These

included the Organization of Indigenous Syndics of the Nicaraguan Caribbean

(OSICAN), the Canadian organisation Assembly of First Nations (AFN),

International Human Rights Law Group, the Mohawks Indigenous Community

of Akwesasne and the National Congress of American Indians (NCAI).247 There

is, however, no mention of the contents of the briefs in the judgement.

The question might be put whether NGOs have sought leave to submitbriefs on other occasions and been refused. This is, however, not thecase. In the Loayza Tamayo case of 1997 the Court made it clear that itsposition is that amicus briefs should not be declared inadmissible sincethey do not belong to the formal record of the proceedings. Rather, thescreening is carried out through the Court’s estimation of the evidentialor legal value of a particular brief.248

The question of oral interventions has been more dubious. FormerRule 34(1) did not distinguish between written and oral interventions,but in practice written interventions have been far more common.According to Buergenthal, the rule appeared to empower the Court togrant permission for an NGO to make an oral presentation, if this would

245 Memorial en Derecho Amicus Curiae Presentado por la Comision Internacional de Juristas ante laCorte Interamericana de Derechos Humanos en el Caso Efraın Bamaca Velasquez c. Guatemala,submitted on June 20, 2000.

246 Inter-American Court of Human Rights, Series C: Decisions and Judgments, No. 72,Baena Ricardo et al. v. Panama, February 2, 2001, para. 46.

247 Ibid., No. 79,Mayagna (Sumo) Awas Tingni Community v. Nicaragua paras. 38, 41, 42, 52, 61.248 It has been observed by Dinah Shelton that the Inter-American Court appears never to

have refused a request for permission to submit an amicus brief, see Shelton, ‘TheParticipation of Nongovernmental Organizations’, p. 638.


have assisted the court in carrying out its function.249 Under the newRules, the Court has the authority to request both oral and writtensubmissions. From the text of the judgements of the Court, however, itseems that onlywritten amicus interventions have so far beenmade in thecontentious cases examined by the Court. It can also be observed thatwhen such submissions aremade, the judgements provide nodescriptionof the arguments presented, and the briefs are not referred to in theCourt’s reasoning.

Another point worth noticing is that NGOs sometimes serve as legaladvisors to the Commission when a case is referred to the Court. In thatrole, NGOshave, inter alia, draftedmemoranda to theCourt, proposed andexamined witnesses and experts and rendered oral arguments. AmericasWatch has played an important role as advisor to the Commission.250

Advisory opinions

Anymember state of the OASmay request an advisory opinion from theCourt in accordance with Article 64(1) or 64(2) of the AmericanConvention on Human Rights, whether or not it has become a party tothe Convention. OAS organs listed in Chapter VIII of the OAS Chartercan seek rulings within their sphere of competence. Private bodiescannot request advisory opinions from the Court.

According to Article 64 of the Court’s Rules of Procedure, the Courtmay apply the rules governing contentious proceedings to its advisoryproceedings. In other words, Article 45 on Procedure for TakingEvidence can be applied for advisory opinions. This was also the caseunder the old Rules.251

249 Buergenthal, ‘The Advisory Practice of the Inter-American Human Rights Court’, p. 16.250 David J. Padilla, ‘The Inter-American Commission on Human Rights of the

Organization of American States: A Case Study’, 9 American University Journal ofInternational Law and Policy (1993), pp. 108–109. Padilla is the Assistant ExecutiveSecretary of the Inter-American Commission. It is also clear from several judgementsof the Inter-AmericanCourt of HumanRights that experts fromNGOshave assisted theCommission before the Court – see, e.g., Series C: Decisions and Judgments, El Amparov. Venezuela, January 18, 1995, para. 6. In other judgements, it is notmentioned that theexperts are NGO officers, while the persons appointed as assistants of the Commissionare in fact NGO staffmembers. For instance, in judgementNo. 69 in the case of CantoralBenavides v. Peru of 18 August 2000, the Commission appointed Jose Miguel Vivancoand Viviana Krsticevic of the NGOs Human Rights Watch – Americas and CEJIL asassistants. The assistants also acted as representatives of the victim. CEJIL has also filedpetitions before the Commission and submitted amicus briefs to the Court.

251 See Buergenthal, ‘The Advisory Practice of the Inter-American Human RightsCourt’, p. 15.


The Court accepted amicus participation in the proceedings leading toits first advisory opinion. It has so far delivered eighteen advisoryopinions. NGOs have intervened as amicus curiae in fifteen of these.252

A few examples will now be mentioned.

Advisory Opinion No. 1 (1982): ‘Other Treaties’ Subject to the Advisory Jurisdiction of

the Court: The International Human Rights Law Group, the International League

for Human Rights and the Lawyers’ Committee for International Human Rights

submitted amicus curiae briefs. Briefs were also presented by the academic

institutions the Inter-American Institute of Human Rights and the Urban

Morgan Institute for Human Rights of the University of Cincinnati College

of Law.253

Advisory Opinion No. 5 (1985): Compulsory Membership in an Association Prescribed

by Law for the Practice of Journalism: The following organisations acted as amici

curiae: the American Newspaper Publishers’ Association, the American Society

of Newspaper Editors and the Associated Press, the Americas Watch Committee

and the Committee to Protect Journalists, the Colegio de Periodistas of Costa

Rica, the Federacion Latinoamericana de Periodistas, the International Press

Institute, the International League for Human Rights, the Inter-American Press

Association, the Lawyers’ Committee for Human Rights, the Newspaper Guild

252 Inter-American Court of Human Rights, Series A: Judgements and Opinions,Advisory Opinions OC-1/82, ‘Other Treaties’ Subject to the Advisory Jurisdiction of the Court,September 24, 1982, para. 5; OC-2/82, The Effect of Reservations on the Entry into Force ofthe American Convention on Human Rights, September 24, 1982, para. 5; OC-3/83,Restrictions to the Death Penalty, September 8, 1983, para. 5; OC-5/85, CompulsoryMembership in an Association Prescribed by Law for the Practice of Journalism, November 13,1985, paras. 5, 8; OC-7/86, Enforceability of the Right to Reply or Correction, August 29,1986, para. 5; OC-8/87, Habeas Corpus in Emergency Situations, January 30, 1987, para. 5;OC-9/87, Judicial Guarantees in States of Emergency, October 6, 1987, para. 8; OC-10/90,Interpretation of the American Declaration of the Rights and Duties of Man Within theFramework of Article 64 of the American Convention on Human Rights, July 14, 1990,para. 7; OC-11/90, Exceptions to the Exhaustion of Domestic Remedies, August 10, 1990,para. 8; OC-13/93, Certain Attributes of the Inter-American Commission On Human Rights,July 16, 1993, paras. 9, 11–12; OC-14/94, International Responsibility for the Promulgationand Enforcement of Laws in Violation of the Convention, December 9, 1994, paras. 8, 10–11;OC-15/97, Reports of the Inter-American Commission on Human Rights, November 14, 1997,paras. 18, 21; OC-16/99, The Right to Information on Consular Assistance in the Framework ofthe Guarantees of the Due Process of Law, October 1, 1999, paras. 14, 22; OC-17/02,Juridical Condition and Human Rights of the Child, August 28, 2002, paras. 9–11, 15;OC-18/03, Juridical Condition and Rights of the Undocumented Migrants, September 17,2003, e.g. paras. 18, 19, 23, 27–31, 37–39, 41.

253 Inter-American Court of Human Rights, Series A: Judgements and Opinions, No. 1,Advisory Opinion OC-1/82, September 24, 1982, para. 5.


and the International Association of Broadcasting, the World Press Freedom

Committee. The Colegio de Periodistas of Costa Rica and the Inter-American

Press Association were also heard at the hearing.254

Advisory OpinionNo. 14 (1994): International Responsibility for the Promulgation and

Enforcement of Laws in violation of the Convention: Briefs were submitted by the

CEJIL jointly with Americas Watch and the Comision Andina de Juristas

(Andean Commission of Jurists). In addition, several professors made amicus

interventions. The President authorised Americas Watch, CEJIL, the Comision

Andina de Juristas and the Red Latinoamericana de Abogados Catolicos to

participate in the hearing. CEJIL and Americas Watch were represented at

the hearing.255

Advisory Opinion No. 16 (1999): The Right to Information on Consular Assistance in the

Framework of the Guarantees of the Due Process of Law: Amicus briefs were filed by

Amnesty International, la Comision Mexicana para la Defensa y Promocion de

Derechos Humanos (CMDPDH), Human Rights Watch/Americas, CEJIL, Death

Penalty Focus of California and Minnesota Advocates for Human Rights. Amicus

briefs were also filed by International Human Rights Law Institute of DePaul

University College of Law,MacArthur Justice Center of the University of Chicago

Law School and a number of individuals.256 The Court commented briefly on the

contents of some of the submissions.257 All the NGOs were represented at the

public hearing of the Court.258

During the proceedings on Juridical Condition and Human Rights of the Child,

(Advisory Opinion No. 17, 2002) and Juridical Condition and Rights of the

Undocumented Migrants (Advisory Opinion No. 18, 2003) a high number of

NGOs, other entities and individuals submitted amicus curiae briefs. In both

cases, the amici were invited to participate in the oral proceedings. Several

NGOs made oral submissions at the hearings. Both opinions included detailed

accounts of the written as well as the oral submissions of the amici.259

It is somewhat surprising that somany NGOs havemade submissions insome cases. According to a former assistant executive secretary of theInter-American Commission, over 100 amicus briefs (from both NGOs

254 Ibid., No. 5, Advisory Opinion OC-5/85, November 13, 1985, paras. 5, 8.255 Ibid., No. 14, Advisory Opinion OC-14/94, December 9, 1994, paras. 8, 10–11.256 Ibid., No. 16, Advisory Opinion OC-16/99, October 1, 1999, paras. 14, 22.257 Ibid., paras. 46, 62. 258 Ibid., para. 16.259 OC-17/02, Juridical Condition and Human Rights of the Child, August 28, 2002, paras. 9–11,

15; OC-18/03, Juridical Condition and Rights of the Undocumented Migrants, September 17,2003, e.g. paras. 18, 19, 23, 27–31, 37–39, 41.


and individuals) had been submitted to the Court as of 1993.260 Theadvisory opinions give the impression that amicus participation hasbecome even more frequent since then.

It is difficult to assess whether the amicus submissions have had anyinfluence on the Court’s reasoning. It can be observed, however, thatbefore 2002, only one of the advisory opinions (No. 5 on Compulsory

Membership in an Association Prescribed by Law for the Practice of Journalism)contained a description of the opinions submitted, while the two latestopinions (Nos. 17 and 18 from 2002 and 2003) include a quite detailedaccount of the submissions.261 There also seems to be a trend towards amore permissive approach to NGO participation in the hearings of theCourt as NGOs have been represented at the hearings in the casesresulting in the six most recent advisory opinion described above.While there is no indication in the earlier four of these opinions thatthe NGOs were allowed to make oral interventions, the two latestinclude summaries of such interventions.

6.8 The African Commission and Court of Humanand Peoples’ Rights

Under Article 46 of the African Charter on Human and Peoples’Rights, the Commission may ‘resort to any appropriate method ofinvestigation’, including to ‘hear from the Secretary General of theOrganization of African Unity or any other person capable of enligh-tening it’.262 Article 119 of the Commission’s Rules of Procedureregarding the procedure for the consideration of non-state commu-nications does not mention amicus participation, but refers solely tothe submissions of the petitioner and the state party concerned.263

This is not surprising considering the confidential nature of theCommission’s proceedings.264 Nevertheless, the author of a communi-cation is informed of the Commission’s decision on admissibility and

260 Padilla, ‘The Inter-American Commission’, p. 111.261 See also Davidson, The Inter-American Human Rights System, p. 148.262 African Charter on Human and Peoples’ Rights, adopted on 27 June 1981.263 Amended Rules of Procedure of the African Commission on Human and Peoples’ Rights, adopted

on 6 October 1995.264 Article 59 of the African Charter provides that: ‘All measures taken within the

provisions of the present Chapter shall remain confidential until such a time as theAssembly of Heads of State and Government shall otherwise decide.’


provided with the statements submitted by the state party and cantherefore request assistance from an NGO which has previously notbeen involved in the case.265 According to Odinkalu and Christensen,the Commission clearly has the power to receive amicus submissions,should it wish to do so.266 It is also clear from the Activity Reportsof the Commission that the Commission feels at liberty to receivea letter from an NGO which is not the complainant but has beenrequested to assist in the case at a later stage.267 It thus seemsthat NGOs may act as amici, even if that particular designation isnot used.

It should, however, be observed that the practical importance forNGOs of making amicus curiae submissions is less than before manyother bodies, as any NGO can lodge communications on its own behalfor on behalf of a victim, individually or jointly.268 The Commission hasalso in recent years allowed individual victims to be representedby NGOs acting as counsel or co-counsel. This was first done inOctober 1995, when Interights represented John Modise before theCommission.269

As mentioned in chapter 5, an additional Protocol to the AfricanCharter establishing an African Court on Human and Peoples’ Rightswas adopted by the OAU Council of Ministers in June 1998. According toArticle 34 of the Protocol on Establishment, the African Court shalldraw up its rules and determine its own procedure. The Court had, asof November 2004, not yet become operational.

265 Rules 118(1), 119(3).266 Chidi AnselmOdinkalu and Camilla Christensen, ‘The African Commission onHuman

and Peoples’ Rights: The Development of its Non-State Communication Procedures’,20 HRQ (1998), p. 279.

267 An Annual Review of the NGO Interights demonstrates that the organisation receivedinstructions from and worked with the complaining NGOs in the case of ConstitutionalRights Project and Civil Liberties Organisation v. Nigeria. Interights, Annual Review 98–99,p. 7. According to the Commission’s own Activity Report, the Secretariat of theCommission received a letter from Interights with regard to that case and thirteenothers. The letter included objections and observations to a mission which had visitedNigeria in connection with a number of cases brought against the country. TwelfthAnnual Activity Report of the African Commission on Human and Peoples’ Rights 1998–1999,annex V, case 102/93, paras. 31–32.

268 See section 5.3.269 Odinkalu and Christensen, ‘The African Commission on Human and Peoples’ Rights’,

p. 273 and Interights, Annual Review 98–99, p. 7.


6.9 Conclusions

It has been demonstrated that NGOs, as well as actors and individuals,have the possibility to act as amici curiae before several international andregional courts. Different courts, however, make different use of therules on submissions from non-parties. The ICJ has the most restrictivepractice of the courts surveyed, although its Statute provides a possib-ility for it to accept amicus briefs from NGOs in advisory proceedings.Theremay be several explanations for this hesitation. First, the ICJ is theonly international court which has a jurisdiction comprising anymatterof international law. The cases before it often concern politically sensi-tive issues, and states’ acceptance of its jurisdiction implies a consider-able sacrifice in terms of sovereignty. Further, all contentious cases aredisputes between states, which are less likely to request or acceptassistance from non-state actors than, for example, individual victimsof human rights violations. Finally, the Court is often the focus ofinternational attention, and would surely receive plenty of submissionsif it started to invite NGOs tomake submissions or grant formal leave foramicus participation. It is thus not surprising that the Court seeks toprotect its integrity by being cautious about letting the interests of non-state actors enter the Court room. If it were not, there would probablybe strong opposition from states.

Some cases involve public interests which are independent ofnational borders. This was particularly clear in the case of Legality of

the Use by a State of Nuclear Weapons in Armed Conflict, which causedconsiderable public opinion.270 It could be argued that the Court shouldbe more permissive towards non-state submissions in such cases, espe-cially considering that there is no need in advisory proceedings toprotect the interests of the parties to remain in control of the case.Dinah Shelton has argued in an article on the participation of NGOs ininternational judicial proceedings that a role for NGOs as amici curiaeseems particularly appropriate in cases which concern obligations ergaomnes.271 In my view, this is a reasonable point.

The restrictive approach of the WTO is in line with the above argu-ment. While Dispute Settlement Panels and the Appellate Body havelimited jurisdiction, the financial interests at stake are considerable.Accordingly, the reaction of member states was strongly sceptical when

270 See section 5.2.271 Shelton, ‘The Participation of Nongovernmental Organizations’, p. 627.


the Appellate Body adopted an Additional Procedure for the submissionof amicus briefs in the Asbestos case, even though the DSU provides a legalbasis for both Dispute Settlement Panels and the Appellate Body toaccept briefs. The fact that states have accepted amicus briefs fromNGOs as part of their own submissions is something different, as thispractice permits the parties to a dispute to remain in control of the case.

The Rules of Procedure of the international criminal courts, as well asthe practice of the ICTY and the ICTR, reflect a permissive attitude inrelation to amici. This is somewhat surprising, as such submissions maybe a disadvantage for the accused. In the Akayesu case before the ICTR,almost thirty NGOs filed a joint brief requesting that the Prosecutoramend the indictment to include crimes of sexual violence. TheProsecutor did indeed change the indictment, and although therewere good grounds for doing this even without the NGO pressure, aswitnesses had testified about sexual crimes, it is not impossible that theamicus brief had an influence on the decision. At the same time, caseswithin international criminal law often involve problems of clarifyingthe facts and providing evidence, and humanitarian NGOs may play animportant role in providing such information.

Among the regional human rights courts, both the European Court ofHuman Rights and the Inter-American Court employ a generous amicuspractice. While the latter accepts large numbers of briefs, especially inits advisory cases, it does not regard the submissions as part of theformal record of the case. This might provide for more freedom forthe Court in its assessment of the briefs. It can also be observed thatthe Inter-American Court seldom mentions the content of briefs in itsjudgements, even though the two latest advisory opinions discussedhave included summaries of amicus submissions. The European Court ofHuman Rights, for its part, has a considerable case-load. In relation tothe total number of judgements delivered, the cases where amicus briefshave been accepted are few. On the other hand, the Court’s judgementsoccasionally provide elaborate descriptions and discussions on thebriefs which have been accepted.

The ECJ employs a restrictive practice towards amici, requiring thatthe intervenor has a direct interest in the case. This might be explainedby the role of the Advocates General, which is similar to that of anamicus. The Court thus has no significant interest in additional informa-tion from NGOs.

From the perspective of the international legal status of NGOs, it isinteresting to note that there seems to be a trend towards a more


permissive approach in relation to the role of NGOs as non-parties ininternational tribunals and quasi-judicial bodies. The ICJ has, with itsnew Practice Directions, indicated that material submitted by interna-tional NGOs on their own initiativemay be of interest to states and IGOspresenting written or oral statements under Article 66 of the Court’sStatute. The material of international NGOs is explicitly placed on thesame level as any ‘publication in the public domain’, and thus notregarded as formal submissions in a case, but is nevertheless men-tioned, unlike material produced by individuals, research institutionsor, for that part, national NGOs. Within the European human rightssystem, an explicit legal basis for third-party intervention was incorpo-rated into the Convention with the coming into force of Protocol No. 11in 1998. At the Inter-American Court, amicus participation has beenextensive for a number of years, but still seems to be increasing.Moreover, with its last advisory opinions the Court appears to be estab-lishing a practice to invite NGOs to make oral interventions duringadvisory proceedings and to incorporate descriptions of NGO submis-sions in advisory opinions. Within the WTO dispute settlementmechanism, the opposition to non-governmental amicus participationis strong. Nevertheless, with the acceptance of a number of briefs andthe adoption of the additional procedure by the Appellate Body, amicusparticipation has become a possibility under discussion.


7 Co-operation with intergovernmentalorganisations

7.1 Introduction

IGOs are the main fora for international law- and policy-making. Withvery few exceptions, full membership in these fora is open exclusivelyto states, and non-members may not vote. NGOs and other non-stateactors are therefore excluded from the actual decision-making withinmost IGOs. However, many IGOs grant some form of observer status tostates that are not members, other IGOs, liberationmovements, NGOsand other entities. Schermers and Blokker note that ‘The word ‘‘obser-ver’’ might give the impression that these entities with observerstatus have a passive role. However, the opposite is often true.Observers often participate actively, transmitting their ideas to inter-national organisations.’1

The relations between IGOs and NGOs are of interest in a studyon the international legal status of NGOs for two main reasons.First, consultative status or other forms of institutionalisedco-operation implies some form of recognition of NGOs as partnersin the international legal system. Secondly, the instruments andpractices which regulate such co-operation constitute platformswhich can be used by NGOs for influencing decision-making andthe gradual development of international law which occurs withinintergovernmental fora.

As will be shown below, NGOs engage in institutionalised co-operationwith IGOs to an increasing extent, and appear to have some influence ontheir decision-making processes. In order to evaluate this co-operationand its meaning in legal terms, the formal relations between differentIGOs and NGOs will be surveyed. Aspects of interest in this respect are,

1 Henry G. Schermers and Niels M. Blokker, International Institutional Law: Unity withinDiversity, 3rd rev. edn., Dordrecht: Martinus Nijhoff, 1999, p. 119.

366

inter alia, membership, observer status, consultative status and otherforms of participation in decision-making bodies. The operationalco-operation between IGOs andNGOswill be briefly examined in chapter9 on international agreements.2

This book cannot provide space for an exhaustive surveyof intergovern-mental bodies. As the purpose of the study is to discuss the legal status ofNGOs in international law, IGOs which are arenas for the drafting, adop-tion andmonitoring of treaties are of primary interest. I have also chosento focus on IGOs which have a more or less extensive co-operation withNGOs, rather than describing all organisations within a particular cate-gory of IGOs. This means that the IGOs presented heremay not be typicalor constitute a representative selection of all intergovernmental bodies,or of all such law-making bodies.3

7.2 The United Nations

Introduction

The United Nations has co-operated with NGOs from its very establish-ment. According to Article 71 of the UN Charter, the ECOSOC:

may make suitable arrangements for consultation with non-governmental org-anizations which are concerned with matters within its competence. Sucharrangements may bemade with international organizations and, where appro-priate, with national organizations after consultation with the Member of theUnited Nations concerned.4

2 See also section 4.3 on the obligations of NGOs in operational co-operation with IGOs.3 For instance, it should be noted that theWTO still has very limited formal contacts withNGOs. Article V:2 of the Marrakesh Agreement establishing the WTO provides that ‘theGeneral Council maymake appropriate arrangements for consultation and cooperationwith non-governmental organizations concerned with matters related to those of theWTO’. The General Council adopted Guidelines for Arrangements on Relations withNon-Governmental Organizations in 1996 under this provision, see WT/L/162, 23 July1996. Article VI of these Guidelines states that: ‘Members have pointed to the specialcharacter of theWTO, which is both a legally binding intergovernmental treaty of rightsand obligations among itsMembers and a forum for negotiations. As a result of extensivediscussions, there is currently a broadly held view that it would not be possible for NGOsto be directly involved in the work of the WTO or its meetings.’ The Guidelines insteadfocus on making WTO documents publicly available and on informal contacts withNGOs, see Articles III–V. For information about WTO activities which are open to NGOs,see the WTO Monthly Bulletin for NGOs.

4 For a description of the drafting process of this provision, and the role of NGOs in thisdiscussion, see Bill Seary, ‘The Early History: From the Congress of Vienna to the SanFrancisco Conference’, in Peter Willets (ed.), ‘The Conscience of the World’: The Influence ofNon-Governmental Organisations in the UN System, Oxford: Hurst & Co., 1996, pp. 26–27.

CO -OPERAT ION WITH INTERGOVERNMENTAL ORGAN I SAT IONS 367

In his report on Renewing the United Nations: A Programme for Reform of1997, the former Secretary-General explained some of the underlyingreasons for the UN to co-operate with NGOs. He stated that the increas-ing influence of civil society was ‘contributing to a process of enlarge-ment of international cooperation and spurring the United Nationssystem and other intergovernmental structures towards greater trans-parency and accountability and closer linkages between national andinternational levels of decision-making and implementing’.5 NGOs andother civil society actors were ‘now perceived not only as disseminatorsof information or providers of services but also as shapers of policy, be itin peace and security matters, in development or in humanitarianaffairs’.6

It is clear that some concrete aspects of NGO co-operation con-tribute to the work of the United Nations. One important form ofco-operation is the information provided regarding factual situationsand policies within particular countries, including violations of treatyobligations, from a ‘third party’, i.e. actors which are not members ofthe United Nations, nor contracting parties to treaties. This type ofinformation is perhaps particularly important to the UN treaty bodies,as will be described below.7 Independent actors such as NGOs can putpressure on states which violate international law without diplomaticconsiderations. Many NGOs also possess considerable expertise withintheir field of operation, which is useful to the United Nations andother IGOs.8

Naturally, co-operation also has problems, one of which is the fast-growing number and diversity of NGOs coupled with the financial andpractical constraints within which the United Nations operates.9 TheUnited Nations also sees a risk that the illegitimate groups of ‘uncivilsociety’ may take advantage of the process of globalisation andincreased IGO–NGO co-operation to advance their own agendas.10

5 A/51/950, Renewing the United Nations: A Programme for Reform, Report of the Secretary-General,14 July 1997, para. 212.

6 Ibid., para. 213. 7 Section 7.2.8 The Secretary-General mentions this factor by stating that NGOs have themselvesbecome primary sources and disseminators of information. A/53/170, Arrangements andPractices, 10 July 1998, para. 71.3. See also Schermers and Blokker, InternationalInstitutional Law, p. 128.

9 A/53/170, Arrangements and Practices, 10 July 1998, para. 71.10 A/51/950, Renewing the United Nations: A Programme for Reform, Report of the Secretary-General,

14 July 1997, para. 209.


The forms for the United Nations’ co-operation with civil society arenow being considered within the organisation, with possible reformsin view. In 1998, Secretary-General Kofi Annan presented a report onthe Arrangements and Practices for the Interaction of NGOs in All Activities of the

United Nations System. In the report, which was compiled as a result of aninitiative by ECOSOC, the Secretary-General noted that there had been‘striking changes’ in United Nations–NGO relations since the 1980s,and referred to ‘the universal movement towards greater citizenaction, sometimes described as the ‘‘global associational revolution’’’.11

He observed that reform and restructuring of the United Nations coin-cided with the emergence of ‘a new participatory international systemresponding to the forces of globalisation sweeping our world’.12 In hisreport to the General Assembly in 2002, the Secretary-General high-lighted the engagement of civil society as an aspect of the UN reformprocess and announced that he would ‘assemble a group of eminentpersons representing a variety of perspectives and experiences toreview past and current practices and recommend improvements forthe future in order tomake the interaction between civil society and theUnited Nationsmoremeaningful’.13 The panel published its final reportin July 2004. Its considerations and recommendations will be discussedbelow.

The General Assembly and the Security Council

Article 9(1) of the UN Charter provides that the General Assembly shallconsist of all the members of the United Nations.14 The Rules ofProcedure do not contain any provisions regarding the participationof observers in the work of the Assembly.15 Decisions on the admissionof new observers are taken in the form of resolutions by the Assembly.Apart from the observers of non-member states, the UN specialisedagencies and other IGOs, the General Assembly has accepted observersfrom a few liberation movements. In 1974, the General Assembly

11 A/53/170, 10 July 1998, para. 2.12 Ibid., para 3. In a later statement the Secretary-General has used the expression ‘NGO

revolution’, UN Press Release SG/SM/7411 GA/9710, Secretary-General, AddressingParticipants at Millennium Forum, Calls for Intensified ‘NGO revolution’, 22 May 2000.

13 A/57/387, Strengthening the United Nations: An Agenda for Further Change, 9 September 2002,para. 141.

14 According to Article 4(1), membership is open only to states.15 A/520/Rev. 15, Rules of Procedure of the General Assembly, with amendments and additions

adopted on 31 December 1984.


decided to invite representatives of the national liberation movementsrecognised by the OAU to participate in the regular meetings of theAssembly main committees and subsidiary bodies, as well as in confer-ences, seminars and other meetings held under the auspices of theUnited Nations which related to their countries.16 The same year, theGeneral Assembly invited the Palestine Liberation Organization (PLO) toparticipate in the sessions and the work of the Assembly and all inter-national conferences convened under its auspices in the capacity ofobserver.17 The South-West Africa People’s Organization (SWAPO) wasgranted observer status by the Assembly in 1976.18 The GeneralAssembly also decided in 1988 that the designation ‘Palestine’ shouldbe used instead of ‘Palestine Liberation Organization’ within the UNsystem.19

NGOs do not have observer status with the UN General Assembly,with three exceptions. The ICRC was granted observer status in 1990with reference to the mandates conferred upon it by the GenevaConventions of 12 August 1949 and its ‘special role . . . in internationalhumanitarian relations’.20 In 1994, the Assembly conferred observerstatus on the International Federation of Red Cross and Red Crescent,referring to ‘the special functions of themember societies . . . which arerecognised by their respective Governments as auxiliaries to the publicauthorities in the humanitarian field on the basis of the GenevaConventions’.21 It is thus clear that the special status conferred onthese organisations by the Assembly is due to their special legal position

16 A/RES/3280 (XXIX), Co-Operation between the United Nations and the Organization of AfricanUnity, adopted on 10 December 1974.

17 A/RES/3237 (XXIX), Observer Status for the Palestine Liberation Organization, adopted on22 November 1974.

18 A/RES/31/152, Observer Status for the South-West Africa People’s Organization, adopted on20December 1976. In 1988, the General Assembly decided that the PLO and the SWAPOwere entitled to have their communications relating to the sessions and work of theAssembly or to all its international conferences issued and circulated directly as officialUN documents, A/43/160, Observer Status of National Liberation Movements, adopted on9 December 1988.

19 A/43/177, Question of Palestine. Additional rights and privileges, including the right toparticipate in the general debate of the Assembly, to speak under agenda items otherthan Palestinian and Middle East Issues at any meeting of the plenary, and to exercisethe right to reply, were conferred upon Palestine in its capacity of observer ten yearslater, see A/RES/52/250, Participation of Palestine in the Work of the United Nations, 13 July1998.

20 A/RES/45/6, Observer Status for the International Committee of the Red Cross, 16 October 1990.21 A/RES/49/2, Observer Status for the International Federation of Red Cross and Red Crescent

Societies in the General Assembly, 19 October 1994.


in international humanitarian law. The co-sponsors of the draft reso-lution, whichwas adopted by the Assemblywithout alterations, pointedout that the granting of observer status to the ICRC should not beconsidered as a precedent. In practical terms, the observer statusmeans that the organisations have access to the meetings of theGeneral Assembly and its committees, and that they can deliver state-ments on subjects within their competence.22

The third NGOwith observer status in the UNGeneral Assembly is theOrder of Malta, which was granted this status in 1994 because of its‘long-standing dedication . . . in providing humanitarian assistance andits special role in international humanitarian relations’.23 In otherwords, this resolution does not refer to treaties or special status underinternational law, as in the case of the ICRC, but only to the Order’s roleas regards humanitarian assistance and relations. As it is often heldthat the Sovereign Military Order of Malta has a general kind of inter-national legal personality, however, the Order’s legal status is likely tohave been important for achieving a special position as an observer.24

Such considerations are reflected in the Explanatory Memorandumannexed to the request for an additional item on the Assembly’s agendathat was put forward by the twenty-four states which raised the issue ofobserver status for the Order of Malta. In the Memorandum, it is statedthat the Order has earned recognition by sixty-four member states ofthe United Nations ‘of its full sovereignty as an equal member of theinternational community’.25

Considering the lack of Charter provisions and rules of procedureregarding the granting and modalities of observer status, it is notimpossible that the General Assembly will adopt some form of arrange-ments for co-operation with NGOs. The Panel of Eminent Persons onCivil Society and UN Relationships has proposed that the dialogueshould be strengthened, as will be discussed below. The possibility ofNGO participation in the General Assembly has been debated within

22 Christian Koenig, ‘Observer Status for the International Committee of the Red Cross attheUnitedNations: A Legal Viewpoint’, International Review of the Red Cross, No. 280, 1991,pp. 37–48 and ‘The ICRC is Granted Observer Status at the United Nations’, InternationalReview of the Red Cross, No. 279, 1990, pp. 581–586.

23 A/RES/48/265, Observer Status for the Sovereign Military Order of Malta in the General Assembly,24 August 1994.

24 See section 2.4.25 A/48/957, Request for the Inclusion of an Additional Item in the Agenda of the 48th Session, 29

June 1994, annex, para. 1.


ECOSOC for several years. ECOSOC decided in 1993 to undertake ageneral review of the arrangements with NGOs with a view to updatingthe resolution on consultative arrangements. One of the most contro-versial issues from the beginning was whether the arrangements forconsultation with NGOs should be extended to cover the GeneralAssembly.26 In the end it was decided that the main resolution shouldbe applicable to ECOSOC only, and the new arrangementswere launchedin July 1996 with Resolution 1996/31.27 ECOSOC, however, recommen-ded the General Assembly to examine the ‘question of the participationof non-governmental organizations in all areas of the work of theUnited Nations, in the light of experience gained through the arrange-ments for consultation between non-governmental organizations andthe Economic and Social Council’.28 The United States opposed theResolution until the President of ECOSOC explained in the interpreta-tive statement that it was the understanding of ECOSOC that the recom-mendation to the Assembly fell ‘within the competence of the GeneralAssembly as set forth in Article 10 of the United Nations Charter’.29 AsArticle 10 on the functions and powers of the General Assembly tomakerecommendations to UN member states makes an exception for thecompetence of the Security Council, the point of the statement seemsto have been to exclude the Council from the scope of the resolution.

The open-ended working group on UN reform set up a sub-group onNGO participation in 1997, but did not achieve any results.30 However,in the same year the General Assembly itself marked a change byinviting NGOs to take part in the Special Session to Review andAppraise the Implementation of Agenda 21 (‘Earth Summitþ 5’). Some1,000 NGOs were accredited to the session.31 The plenary of the specialsession was, for the first time in UN history, addressed by ‘representa-tives ofmajor groups, including non-governmental organizations work-ing on behalf of the environment, women, indigenous peoples, farmers,trade unions, the private sector and youth’.32

26 Peter Willetts, ‘From ‘‘Consultative Arrangements’’ to ‘‘Partnership’’: The ChangingStatus of NGOs in Diplomacy at the UN’, 6 Global Governance (2000), p. 198.

27 See section 7.2.28 E/1996/L.24, Non-Governmental Organizations, Draft decision of 16 July 1996 submitted by

the President, adopted without amendment as ECOSOC Decision 1996/297, 25 July1996.

29 Willetts, ‘From ‘‘Consultative Arrangements’’’, p. 198. 30 Ibid., p. 200.31 A/53/170, Arrangements and Practices, 10 July 1998, para. 10.32 UN Press Release, Special Session of General Assembly on Implementation of Agenda 21 Concludes

at Headquarters, 23–27 June, GA/9276, ENV/DEV/442, 27 June 1997.


Although the President of the General Assembly stated in 1997 that theparticipation of NGOs in the Earth Summitþ 5 would not create a pre-cedent for other special sessions, NGOs have in fact been invited toseveral other special sessions since then.33 At the twentieth special ses-sion of the General Assembly on the World Drug Problem, held in June1998, accreditation was granted to all NGOs with a serious interest in thequestions of drug abuse and illicit trafficking.34 In the Special Session ofthe International Conference onPopulation andDevelopment (ICPDþ 5),held in July 1999, NGOswere also allowed to address the plenary.35 In theSpecial Session on Children in 2000, 1,700 representatives of 700 NGOsparticipated. The participating NGOs included not only those accreditedby ECOSOC, which is the ordinary practice for UN conferences, but alsoNGO partners of the United Nations Children’s Fund (UNICEF). A limitednumber of NGO representatives were allowed to address the plenary.36

Permanent consultative arrangements for NGOs with the GeneralAssembly still seem far away, however. A groupofNGOswhich is lobbyingfor such arrangements to come into existence has drafted a resolution forwhich it is attempting to gain support.37 In the draft resolution, it isproposed that NGOs should be invited to participate in the work of theAssembly’s main committees, special sessions and, as appropriate, sub-sidiary and ad hoc bodies, and that the ECOSOC consultative arrangementsshould apply to special sessions of the Assembly. It is further proposedthat NGOs with consultative status with ECOSOC should be granted con-sultative statuswith theAssembly, and that theAssembly should establishprocedures in relation to other NGOs without such status.38

Even though formal participation for NGOs in the meetings of theSecurity Council appears politically impossible, informal consultationsdo take place. These consultations are informally called the ‘Arria con-sultations’, or ‘Arria formula meetings’ after the former Venezuelanrepresentative who initiated the practice in 1992 during the crisis in

33 Willetts, ‘From ‘‘Consultative Arrangements’’’, p. 201.34 A/53/170, Arrangements and Practices, 10 July 1998, para. 10.35 UN Press Release, General Assembly Concludes Twenty-First Special Session on 1994 Cairo

Population and Development Conference Outcome, GA/9577, 2 July 1999.36 UN Special Session on Children, Newsletter No. 5, October 2002, p. 4.37 The group is called the International Task Group on Legal and Institutional Matters

(INTGLIM), and is chaired by the World Federalist Movement. See also below on thediscussions on reform of UN–civil society relationships.

38 INTGLIM, General Assembly NGO Resolution, November 2000, on file with the author. Alsoaccessible online at the World Federalist Movement’s website at wfm.org/ACTION/pdf/2000_NGO_GA_Resolution.pdf.


the former Yugoslavia.39 There is in fact a legal basis for such consult-ations in the Council’s provisional rules of procedure. Rule 39 providesthat ‘The Security Council may invite members of the Secretariat orother persons, whom it considers competent for the purpose, to supplyit with information or to give other assistance in examining matterswithin its competence’.40 According to an appendix to the rules, theCouncil may receive written statements ‘from private individuals andnon-governmental bodies’. A list of all such communications relating tomatters of which the Security Council is seized shall be circulated to allrepresentatives on the Security Council.41 This procedure has been usedby NGOs, for example in a letter-writing campaign directed towards theUS government.42 Arria consultations regularly take place; during theNorwegian chairmanship of the Council in March 2002, for example,four Arria consultations on different subjects were organised.43 TheNGO Global Policy Forum reports that Germany organised an Arriameeting in May 2004 at the suggestion of Medecins sans Frontieresand Human RightsWatch. The topic of the discussions was the situationin Darfur. Medecins sans Frontieres, Care International, Oxfam,International Crisis Group, Human Rights Watch and World Visionwere invited to speak. The Arria formula has been discussed by thePanel of Eminent Persons on Civil Society and UN Relationships, aswill be described below.

ECOSOC consultative arrangements

General

As stated above, Article 71 of the UN Charter entitles ECOSOC to makesuitable arrangements for consultation with NGOs which are concernedwith matters within its competence. According to this provision, such

39 Ruth Wedgwood, ‘Legal Personality and the Role of Non-Governmental Organizationsand Non-State Political Entities in the United Nations System’, in Rainer Hofmann,Non-State Actors as New Subjects of International Law. International Law – From the TraditionalState Order Towards the Law of the Global Community, Proceedings of an InternationalSymposium, Berlin: Duncker & Humblot, 1999, p. 27 andWilletts, ‘From ‘‘ConsultativeArrangements’’’, p. 200.

40 S/96/Rev.7, Provisional Rules of Procedure of the Security Council, New York, 1983.41 Ibid., appendix, Provisional Procedure for Dealing with Communications from Private Individuals

and Non-Governmental Bodies, Rule A.42 Willetts, ‘From ‘‘Consultative Arrangements’’’, p. 199.43 S/2002/663, Letter Dated 12 June 2002 from the Permanent Representative of Norway to the

United Nations Addressed to the President of the Security Council, 13 June 2002, pp. 7–8.


arrangements may be made with international NGOs and, where appro-priate, with national organisations after consultation with the memberstate concerned.

The formulation of the first guidelines for consultative relationshipbetween ECOSOC and NGOs was among the matters discussed duringthe first meetings of the UN General Assembly. In 1946, the Assemblyadopted a resolution according to which ECOSOC should provide for con-sultative relationship with certain NGOs.44 These first initiatives camemainly from the trade unions movement; it was the World Federation ofTrade Unions, the American Federation of Labor, the InternationalCo-Operative Alliance and ‘other non-governmental organizations’ thatrequested that their representatives should be allowed to take part in thework of ECOSOC. The same year, ECOSOC adopted a report, prepared bythe Committee for consultations with non-governmental organisations,which provided for arrangements for consultation, including the establish-ment of a standing committee with the task to review applications fromNGOs for consultative status and to make recommendations to theCouncil.45 Among the conditions for an NGO to be granted consultativestatus was that it should be concerned with matters falling within thecompetence of ECOSOC with respect to international economic, socialcultural, educational, health and related matters, that its aims and pur-poseswere in conformitywith the spirit, purposes andprinciples of theUNCharter, that it was of recognised standing and represented a substantialproportion of the organised persons within its interest field, that it wasinternational in its structure and that its members could exercise votingrights in relation to policies or action of the organisation. Organisationswhich were proved to be ‘discredited by past collaboration in fascistactivities’ were explicitly excluded from consultative status.46

44 GA Resolution 4(I), Representation of Non-Governmental Bodies on the Economic and SocialCouncil, 14 February 1946. The resolution reads ‘the Economic and Social Councilshould, as soon as possible, adopt suitable arrangements enabling the WorldFederation of Free Trade Unions and the International Co-Operative Alliance as well asother international non-governmental organizations whose experience the Economicand Social Council will find necessary to use, to collaborate for purposes of consultationwith the Economic and Social Council’. TheWFTU had launched a persistent campaignat the beginning of 1946 in order to achieve representative status for itself in theECOSOC, Chiang Pei-Heng, Non-Governmental Organizations at the United Nations: Identity,Role and Function, New York: Praeger, 1981, pp. 86–89.

45 E/43/Rev. 2, Arrangements for Consultation with Non-Governmental Organizations, 21 June1946.

46 Ibid., paras. 1–4, 7.


The purpose in establishing consultative arrangements mentioned inthe resolution was twofold: first, to secure expert information or advicefrom organisations with special competence and, secondly, to enableorganisations representing important elements of public opinion toexpress their views.47 The report also expressed the general view thatthe arrangements for consultationwithNGOswere an importantmeansfor ensuring that the interests of the peoples of the United Nations inthe UN’s policies and operations be fulfilled.48 As regards the principlesgoverning the nature of the relationship, the report stated that:

It is important to note that a clear distinction is drawn in the Charter betweenparticipation without vote in the deliberations in the Council, and the arrange-ments for consultations . . . It is considered that this distinction, deliberatelymade in the Charter, is fundamental and that the arrangements for consultationshould not be such as to accord to non-governmental organisations the samerights of participation accorded to States not members of the Council and to thespecialized agencies brought into relationship with the United Nations.49

It was further emphasised as a basic principle that the arrangementsshould not be such as to overburden the Council or ‘transform it into ageneral forum for discussion’.50 Both these principles have been kept tothis day in the provisions regulating ECOSOC consultative arrange-ments.51 Among the NGOs which were granted consultative status dur-ing the first five years of consultations were the International Chamberof Commerce (ICC), Lions International, the International Union ofProducers and Distributors of Electric Power, the InternationalStudent Service, the World Association of Girl Guides and Girl Scouts,Rotary International and the World Organization of the TeachingProfession.52

In 1950, the arrangements were reviewed and a new resolution wasadopted by ECOSOC.53 One of the new aspects of the relationship wasthat it explicitly required an input by NGOs – it is stated that ‘theorganizations shall undertake to support the work of the United

47 Ibid., part III, para. 3. 48 Ibid., part VI. 49 Ibid., part III, para. 1.50 Ibid., part III, para. 2.51 See E/RES/96/31, Consultative Relationship between the United Nations and Non-Governmental

Organizations, 25 July 1996, paras. 18–19.52 ECOSOC Resolution E/189/Rev. 2, Arrangements for Consultation . . . , 1 October 1946 and

ECOSOC Resolution 334 (XI), Review of Non-Governmental Organizations in ConsultativeStatus, 20 July 1950.

53 ECOSOC Resolution 288 (X), Review of Consultative Relationship with Non-GovernmentalOrganizations, 27 February 1950.


Nations and to promote knowledge of its principles and activities’.54

The following year, ECOSOC requested the General Assembly to exam-ine the question of the attendance of NGOs at Assembly discussions orcommittees on problems which concerned NGOs.55

Themodern basis for the consultative relationship was established byECOSOC in 1968with Resolution 1296, which governed the relationshipuntil 1996, when it was superseded by ECOSOC Resolution 1996/31.56

According to the former arrangements, national NGOs were grantedconsultative status only in special cases and after consultation with themember state concerned.57 In the 1996 resolution, it is simply statedthat relationships may be established with ‘international, subregionaland national organizations’.58 The requisite of consultation with mem-ber states as regards national NGOs is, however, maintained in the 1996arrangements. It is further stated that participation of NGOs from allregions, and particularly from developing countries, should beensured.59

The resolution, ‘acknowledging the breadth of non-governmentalorganizations’ expertise and the capacity of non-governmental organ-izations to support the work of the United Nations’ lays down thefollowing principles to be applied in the establishment of consultativerelations:

1. The organization shall be concerned with matters falling within thecompetence of the Economic and Social Council and its subsidiarybodies.

2. The aims and purposes of the organization shall be in conformity withthe spirit, purposes and principles of the Charter of the United Nations.

3. The organization shall undertake to support the work of the UnitedNations and to promote knowledge of its principles and activities, inaccordance with its own aims and purposes and the nature and scopeof its competence and activities . . .

9. The organization shall be of recognized standing within the particularfield of its competence or of a representative character . . .

10. The organization shall have an established headquarters, with anexecutive officer. It shall have a democratically adopted constitution, acopy of which shall be deposited with the Secretary-General of the

54 Ibid., part I, para. 4.55 ECOSOC Resolution 413 (XIII), Non-Governmental Organizations, 20 September 1951.56 E/RES/1296 (XLIV), Arrangements for Consultation with Non-Governmental Organizations,

3 May 1968 and 1996/31, Consultative Relationship between the United Nations and Non-Governmental Organizations, 25 July 1996.

57 E/RES/1296 (XLIV), para. 9. 58 E/RES/96/31, para. 5. 59 Ibid.


United Nations, and which shall provide for the determination ofpolicy by a conference, congress or other representative body, and foran executive organ responsible to the policy-making body.

11. The organization shall have authority to speak for its membersthrough its authorized representatives. Evidence of this authority shallbe presented, if requested.

12. The organization shall have a representative structure and possessappropriate mechanisms of accountability to its members, who shallexercise effective control over its policies and actions through theexercise of voting rights or other appropriate democratic andtransparent decision-making processes. Any such organization that isnot established by a governmental entity or intergovernmentalagreement shall be considered a non-governmental organization forthe purpose of these arrangements, including organizations thataccept members designated by governmental authorities, providedthat such membership does not interfere with the free expression ofviews of the organization.

13. The basic resources of the organization shall be derived in the mainpart from contributions of the national affiliates or other componentsor from individual members . . . Any financial contribution or othersupport, direct or indirect, from a Government to the organizationshall be openly declared to the Committee through the Secretary-General and fully recorded in the financial and other records of theorganization and shall be devoted to purposes in accordance with theaims of the United Nations.60

The conditions for NGOs to be granted consultative status are basicallythe same in the 1968 and the 1996 arrangements. As regards the standingof an organisation, the former version required a ‘recognised internationalstanding’ (emphasis added) as opposed to the current version which, asmentioned above, is more permissive towards national NGOs. A formercondition that organisations represented a ‘substantial proportion . . . ofthe population or of the organized persons within the particular field ofits competence’ was removed in the 1996 arrangements. As regardsmembers designated by governmental authorities, both the old and the

60 E/RES/96/31, part I. See also section 1.3 regarding the definition of ‘NGO’. During itsresumed 2000 session, the Committee on NGOs discussed the topic of NGOs whosedefining characteristics ‘were not in strict conformity with Council resolution 1996/31,namely commercial/industrial, professional, religious, research/educational orgovernment-funded’. It was agreed that the topic should be reconsidered in the future.It seems that the Committee is considering a more restrictive interpretation of theresolution, as the categories of organisations mentioned have indeed been grantedconsultative status in the past. E/2000/8, Report of the Committee on Non-GovernmentalOrganizations . . . , 22 February 2001, para. 116.


new arrangements allow for this, provided that such membership doesnot interfere with the free expression of views of the organisation. Therequirement that financial and other contributions direct or indirectfrom a government shall be openly declared is also the same.

A new section in the 1996 resolution as compared to the formerarrangements includes provisions on the participation of NGOs in inter-national conferences convened by the United Nations and their pre-paratory process.61 These will be discussed in a subsequent chapter.62

The distinction between participation without a vote in ECOSOC andthe consultative relationship that was laid down in 1946 is repeatedwith emphasis. NGOs shall not have the same rights of participation asnon-member states and the specialised agencies.63 An additional clauseunderlining state control over the relationship was included in the 1996resolution:

The granting, suspension and withdrawal of consultative status as well as theinterpretation of norms and decisions relating to this matter, are the preroga-tive of Member States exercised through the Economic and Social Council andits Committee on Non-Governmental Organizations.64

The purpose of the consultative arrangements are described as being two-fold: on the one hand, the consultative relationship should enable theCouncil or one of its bodies to secure expert information or advice fromorganisationshaving special competence in the subjects forwhich consulta-tive arrangements are made and, on the other, the arrangements shouldenable organisations that represent important elements of public opinionto express their views. The group of NGOs granted consultative status‘should, in sum, as far as possible reflect in a balanced way the majorviewpoints or interests in these fields inall areas and regionsof theworld’.65

Part VIII of the resolution governs the suspension and withdrawal ofconsultative status.66 The consultative status of NGOs with ECOSOC and

61 Ibid., part VII. 62 Section 8.2.63 E/RES/96/31, paras. 18–19 reads: ‘A clear distinction is drawn in the Charter of the

United Nations between participation without vote in the deliberations of the Counciland the arrangements for consultation . . . This distinction, deliberately made in theCharter, is fundamental and the arrangements for consultation should not be such as toaccord to non-governmental organizations the same rights of participation as areaccorded to States not members of the Council and to the specialized agencies broughtinto relationship with the United Nations. The arrangements should not be such as tooverburden the Council or transform it from a body for coordination of policy andaction, as contemplated in the Charter, into a general forum for discussion.’

64 Ibid., para. 15. 65 Ibid., para. 20. 66 Ibid., paras. 55–59.


the listing of those on the Roster shall be suspended for up to three yearsor withdrawn in three cases: (1) if an organisation clearly abuses itsstatus by engaging in a pattern of acts contrary to the purposes andprinciples of the UN Charter, (2) if there exists substantiated evidenceof influence from proceeds resulting from internationally recognisedcriminal activities, or (3) if within the preceding three years an organ-isation did not make any positive or effective contribution to the workof the United Nations.67 The last ground for suspension or withdrawalis interesting in that it underlines that NGOs in consultative statusundertake an obligation to contribute to the work of ECOSOC and theUnited Nations.68

The consultative status is granted by a decision of ECOSOC on therecommendation of its standing Committee on Non-GovernmentalOrganizations.69 There are three categories of consultative relation-ship. General consultative status can be accorded to NGOs which areconcerned withmost of the activities of the Council and its subsidiarybodies and can demonstrate that they have a substantive and sus-tained contribution to make to the achievement of the objectives ofthe United Nations. These organisations should also be closelyinvolved with the economic and social life of the peoples of theareas they represent and broadly representative in membership ofmajor segments of society in a large number of countries in differentregions of the world.70 Organisations which have a special compe-tence in, and are concerned specifically with, only a few of the fieldsof activity covered by the Council and its subsidiary bodies and thatare known within the fields for which they have or seek consultative

67 The second ground for suspension or withdrawal of consultative status is vaguelyphrased. The corresponding provision in the previous resolution on consultative status,ECOSOC Resolution 1296 of 1968, stated that consultative status should be suspendedor withdrawn if there was ‘substantiated evidence of secret governmental financialinfluence to induce an organization to undertake acts contrary to the purposes andprinciples of the Charter of the United Nations’. It is interesting that today’s threats areconsidered to be criminal activities such as drugs trade, while governments wereregarded as a threat in the 1960s. The threats have, in other words, moved from beinggovernmental to being non-governmental.

68 See also section 4.3. 69 E/RES/96/31, part IX.70 Ibid., para. 22. Examples of organisations in general consultative status include Caritas

Internationalis, Consumers International, Greenpeace International, the InternationalChamber of Commerce, Liberal International, Medecins sans Frontieres Internationaland the World Federation of Trade Unions. List of NGOs in Consultative Status with theECOSOC, 8 August 2004.


status can acquire special consultative status.71 Finally, NGOs which theCouncil or the UN Secretary-General consider can make occasionaland useful contributions to the work of the Council or its subsidiarybodies or other UN bodies within their competence can be includedin a list, the Roster.72

The different categories enjoy different privileges. The provisionalagenda of the Council shall be communicated to all three groups, butonly organisations with general consultative status may propose tothe Committee on Non-Governmental Organizations that theCommittee request the Secretary-General to place items of specialinterest to the organisations on the provisional agenda of theCouncil.73 Organisations in general or special consultative statusmay designate representatives to sit as observers at public meetingsof the Council and its subsidiary bodies. Those on the Roster may sendrepresentatives to meetings concerned with matters within their fieldof competence.74 Only NGOs in general or special consultative statusmay submit written statements on subjects in which these organisa-tions have a special competence. Such statements shall be circulatedby the UN Secretary-General to the members of the Council.75

Organisations in general consultative status may make oral presenta-tions to the Council upon recommendation of the Committee on Non-Governmental Organizations, while those with special consultativestatus may only do so under certain circumstances and after recom-mendation by the Committee.76

In 1948, when the consultative arrangements had been operationalfor two years, forty-one NGOs had been granted consultative status.77 Atpresent, there are 2,534 NGOs in consultative status with ECOSOC, of

71 Ibid., para. 23. The list of NGOs in special consultative status includes AmnestyInternational, Anti-Slavery International, Baha’i International Community, theEuropean Roma Rights Center, the European Women’s Lobby, Freedom House,Handicap International, Human RightsWatch, the International Commission of Juristsand the Union of International Associations. List of NGOs in Consultative Status with theECOSOC, 8 August 2004.

72 Ibid., para. 24. Organisations on the Roster include the American Foreign InsuranceAssociation, the Cherokee Nation of New Jersey, the Hunger Project, the InternationalBuddhist Foundation and the National Rifle Association of America Institute forLegislative Action. List of NGOs in Consultative Status with the ECOSOC, 8 August 2004.

73 Ibid., para. 28. 74 Ibid., para. 29. 75 Ibid., para. 30. 76 Ibid., para. 32.77 E/1998/43, Work of the Non-Governmental Section of the Secretariat, Report of the Secretary-

General, 8 May 1998, para. 5. The report includes a table of the increasing number ofNGOs in consultative status between the years 1948 and 1997.


which 134 organisations have general consultative status, 1,477 havespecial consultative status and 923 are on the Roster.78

ECOSOC Standing Committee on Non-GovernmentalOrganizations

As is clear from the above description of the ECOSOC consultative arrange-ments with NGOs, the standing Committee on Non-GovernmentalOrganizations plays a central role. The Committee, which was establishedin 1946, is an intergovernmental body composed of nineteen memberstates. Its main tasks are to consider applications for consultative status,to consider quadrennial reports submitted by NGOs and to monitor con-sultative relationships in general, including the withdrawal or suspensionof status. The Committee makes recommendations to ECOSOC, whichdecides on the granting, suspension andwithdrawal of consultative statusand on the reclassification of organisations from one category to another.The Committee alsomakes recommendations regarding the participationof NGOs not in consultative status for participation inworking groups andother bodies.79

Obviously, the intergovernmental nature of the Committee leaves thedecision-making power regarding consultative status in the hands ofmember states. On the surface, the Committee’s handling of applica-tions on consultative status does not seem problematic. At its 2003regular session, the Committee had 107 applications before it. Ofthose, the Committee recommended fifty-seven for consultative statusand deferred forty-eight applications for consideration at a later date(two having withdrawn their applications).80 During its 2002 regularsession, the Committee decided to close its consideration of three appli-cations, of which one had requested the Committee to do so. At thesame session, the Committee granted consultative status to ninety-three NGOs.81 However, it can be observed that the Committee’s

78 List of NGOs in Consultative Status with ECOSOC, 4 August 2004, accessible online atwww.un.org/esa/coordination/ngo/pdf/INF_List.pdf.

79 E/1998/72, Report of the Committee on Non-Governmental Organizations on the first part of its1998 session, 19 June 1998, p. 6. See also, generally on the Committee, Jurij Daniel Aston,‘The United Nations Committee on Non-Governmental Organizations: Guarding theEntrance to a Politically Divided House’, 12 EJIL (2001), pp. 943–962.

80 E/2003/32 (Part I), Report of the Committee on Non-Governmental Organizations on its 2003Regular Session, 16 June 2003, p. 1.

81 E/2002/71 (Part I), Report of the Committee on Non-Governmental Organizations on its 2003Regular Session, 3 July 2002, pp. 1, 7.


deferment of applications seems to be used in some cases as a means ofdelaying controversial candidatures.82

The Committee’s documentation provides illustrative examples ofthe political implications of the granting of consultative status tosome NGOs. Long statements delivered by state representatives inpolitically sensitive cases are common in the reports, and decisionsare rather frequently adopted by vote.83 The case of Human Rightsin China (HRIC), which was discussed during the Committee’s 1999session, provides an example of a controversial candidature for consult-ative status.

HRIC is an international NGO which was founded in 1989 by Chinese scientists

and scholars. It monitors the implementation of international human rights

standards in the People’s Republic of China and carries out human rights

advocacy and education activities. At its 693rd meeting on 4 June 1999, the

Committee on Non-Governmental Organizations had before it the application

of HRIC for consultative status with ECOSOC. The representative of China

advocated strongly that the Committee should not recommend consultative

status to HRIC, stating, inter alia, that ‘The overwhelming majority of the mem-

bers of HRIC have never set foot on Chinese soil . . . Because of their total

ignorance of the realities in China, they are totally disqualified to make any

comments on the human rights situation in my country . . . Among members of

the Board of Directors of that organization are criminals who have been duly

punished by judicial organs, criminals who have fled the country but have

remained on the wanted list of the Chinese Government, and prisoners who,

because of their physical conditions, have been granted medical paroles. The

so-called human rights activities they are engaged in have all been born out of

their personal vendetta against the Chinese Government and have nothing

whatsoever to do with the human rights of the Chinese people in general.’84

The representative of China requested a vote on the delegation’s pro-posal not to recommend consultative status for HRIC. The proposal wasadopted by a vote of 13 to 3 with 2 abstentions. Among the states whichvoted in favour of the proposals were, inter alia, Algeria, Cuba, Lebanon,Sudan and Turkey, while France, Ireland and the United States voted

82 Aston, ‘The United Nations Committee on Non-Governmental Organizations’, p. 950.83 See, e.g., E/1999/109/Add.2 (Part II), Report of the Committee on Non-Governmental

Organizations on its resumed 1999 session, 28 March 2000, para. 2 ff. regarding the appli-cations from the Assyrian National Congress, Human Rights Guard, UniversidadLatinoamericana de la Libertad Frederich Hayek, etc.

84 E/1999/109, Report of the Committee on Non-Governmental Organizations on its 1999 session,15 July 1999, para. 24.


against.85 HRIC has not been granted consultative status by ECOSOC;the organisation was also refused accreditation to theWorld ConferenceAgainst Racism in 2001 after opposition from China, in spite of theConference Secretariat’s favourable recommendation.86

As regards suspension of consultative status, a couple of examplesmay be described as an illustration.

In July 2000, the Committee on Non-Governmental Organizations recom-

mended to ECOSOC that it should suspend the consultative status of the

International Council of the Association for Peace in the Continents

(ASOPAZCO). The discussion regarding ASOPAZCO was initiated by the Cuban

delegation, which alleged that the organisation had violated the provisions of

ECOSOC Resolution 1996/31 in several ways, for example by organising, sup-

porting and financing subversive activities in Cuba and in other countries.87 The

Cuban delegation proposed that the consultative status of ASOPAZCO should be

withdrawn. The organisation responded to, and denied, the allegations in a

report which was submitted to the Committee. A direct dialogue between the

Committee and the organisation could never take place during the Committee’s

meetings, as the session was lengthy and the representative of the organisation

had to leave New York before thematter was taken up.88 As the request from the

representative of Cuba to take action on ASOPAZCO was formulated during the

last days of the Committee’s session, some delegations were of the opinion that

the matter should be postponed. This motion was, however, rejected by the

majority of Committee members, and the representative of ASOPAZCO was

given forty-eight hours to appear before the Committee. In spite of protests

85 After the adoption of the proposal, the US representative stated: ‘June 4, 1999 – a saddate – the tenth anniversary of the events in Tiananmen Square, which remainsunexplained, and also a date we shall recall as one on which the Committee chose tooverlook not just the United Nations Charter, the Universal Declaration of HumanRights and the Vienna Declaration and Programme of Action, but also the significantpiece of human rights legislation – the Defenders Declaration. Today, this Committeechose to deny accreditation to a non-governmental organization which embodies andadvances these objectives, despite the fact that this non-governmental organizationmeets all the technical criteria which this Committee is mandated to examine’. E/1999/109, para. 27.

86 Human Rights in China Press Release, Human Rights in China Excluded from WorldConference Against Racism, 22 May 2001.

87 E/2000/88 (Part II), Report of the Committee on Non-Governmental Organizations, 5 July 2000,paras. 71 ff.

88 During the same session, the Committee took up as an inherent problem of theprocedure for attendance of NGOs under discussion, that the Committee’s programmeof work could specify only a broad period during which an application or other matterwould be considered. It was therefore decided that the NGO representatives with thelongest distances to travel should be heard at the beginning of each session. E/2000/88(Part II), Report of the Committee on Non-Governmental Organizations, 5 July 2000, para. 65.


from, among others, the representatives of the United States, France and

Germany, the Committee decided to recommend to ECOSOC that the consulta-

tive status of ASOPAZCO should be suspended for three years.89 ECOSOC

decided to follow the recommendation, with 11 votes in favour to 5 against,

with 2 abstentions.90

At the same session of the Committee on NGOs, the Committee recom-mended ECOSOC to suspend the status of the organisation TransnationalRadical Party (TRP) as a result of a protest from the Russian delegation.

The Russian representative alleged that TRP had accredited a Chechen separa-

tist and terrorist to the UN Commission on Human Rights. At the session of

the Commission on Human Rights, the representative had identified himself

as a representative of the President of Chechnya in Europe and to the United

Nations. In its written response, the TRP acknowledged that it had accredited

Mr Idigov from Chechnya to speak about gross and systematic violations of

human rights, the right to self-determination and the need to end the

Chechnya conflict through negotiations. Mr Idigov denied that he was a

terrorist or had ever participated in such activities. The decision to recom-

mend suspension of the consultative status of TRPwas taken by consensus, but

with reservations from some delegations, such as the German delegation,

which stated that the measure was out of proportion and that the allegations

about TRP had not been verified.91 In the ECOSOC debate, several speakers

questioned the procedure followed in the Committee on Non-Governmental

Organizations when considering the case of the TRP, saying that the NGO had

not been given a chance to respond to all the allegations made against it and

that no conclusive evidence had been presented to confirm allegations of

terrorism, drug trafficking and paedophilia. The Council rejected the

Committee’s draft decision to suspend the status of TRP by a vote of 20 in

favour to 23 against, with 9 abstentions.92

89 E/2000/88 (Part II), Report of the Committee on Non-Governmental Organizations, 5 July 2000,paras. 86 ff.

90 ECOSOC Decision 2000/307, in E/2000/INF/2/Add.3, Resolution and Decisions Adopted by theEconomic and Social Council, 1 December 2000, p. 12, UN Press Release 367, Non-Governmental Organization Committee Recommends Status Suspension, 23 June 2000. On theCommission’s decisions regarding suspension and withdrawal of consultative status,see Aston, ‘The United Nations Committee on Non-Governmental Organizations’,pp. 952–957.

91 E/2000/88 (Part II), Report of the Committee on Non-Governmental Organizations, 5 July 2000,paras. 101–117.

92 UN Press Release 5934, Economic and Social Council Establishes New UN Forum on Forests,18 October 2000. For an example of withdrawal of consultative status see, for instance,the example of Christian Solidarity International in E/1999/109, Report of the Committeeon Non-Governmental Organizations on its 1999 session, 15 July 1999, paras. 69–81, with theECOSOCdiscussions that followed in ECOSOC in E/1999/SR.46, Substantive Session of 1999,

CO-OPERAT ION WITH INTERGOVERNMENTAL ORGAN I SAT IONS 385

The two-step procedure, with the Committee of Non-GovernmentalOrganizations as a preparatory body and ECOSOC as the decision-making body, compensates for some of the risk that the Committeemay adopt a politicised decision or a decision contrary to Resolution1996/31. It should be noted, however, that in the case of the NGOChristian Solidarity International, the organisation’s privileges weretemporarily suspended although the Committee had not applied itsprocedure correctly and was asked to re-examine the case.93 Thismeans that it is possible for states to prevent an NGO in consultativestatus from attending a particular session of, for instance, the Sub-Commission on the Promotion and Protection of Human Rights,which meets in July and August.

Observers from NGOs in consultative status with ECOSOC may attendopen meetings of the Committee on Non-Governmental Organizations,as well as meetings of all the subsidiary bodies of the Council.94 Inaccordance with ECOSOC consultative arrangements, the Committeeshall also hold, before each of its sessions and at other times as necessary,consultations with organisations in consultative status to discuss ques-tions of interest to the Committee or to the organisations relating to therelationship between the NGOs and the United Nations.95

The ECOSOC standing Committee on Non-Governmental Organizationsis served by the Non-Governmental Section of the Secretariat, which pre-pares documentation for the Committee and provides accreditation forNGOs in consultative status with ECOSOC. It also maintains contact withthe Conference of NGOs in Consultative Relationship with the UnitedNations (CONGO).96

Provisional Summary Record of the 46th Meeting, p. 13; ECOSOC Decision 1999/268, in E/1999/INF/2/Add.2, Resolutions and Decisions Adopted by the Economic and Social Council, 30August 1999, pp. 186–187, E/1999/SR.46, p. 15; ECOSOC Decision 1999/292, in E/1999/INF/2/Add.3, Resolutions and Decisions Adopted by the Economic and Social Council, p. 9. See alsoStatement to ECOSOC on Case of CSI, By Danielle Bridel, First Vice-President, Conference ofCONGO, Geneva, 28 July 1999. Accessible online at www.globalpolicy.org/ngos/docs99/bridel99.htm, as of 20 September 2004.

93 See n. 92 above. 94 E/RES/1996/31, para. 35. 95 Ibid., para. 61(a).96 E/1998/43, Work of the Non-Governmental Section of the Secretariat, Report of the

Secretary-General, 8 May 1998. In 1948, NGOs in consultative status with ECOSOCestablished CONGO, which is an independent membership association of NGOs thataims at facilitating the participation of NGOs in UN debates and decisions. CONGOconvenes meetings on NGO access to the United Nations and issues statements on thatsubject, and organises discussions with the members of the ECOSOC Committee onNGOs. It does not take positions on substantive matters.


ECOSOC subsidiary bodies and extra-conventional mechanisms

The UN functional commissions have both political and law-makingtasks. International conventions and other instruments are draftedhere, and the commissions also have functions as regards monitoringcompliance with the conventions. NGOs are involved in the work of thefunctional commissions in accordance with ECOSOC consultativearrangements, which also apply to the subsidiary bodies of ECOSOC.The functional commissions of ECOSOC have common rules of proced-ure, which include regulations for their relations with NGOs.97 The Rules,which refer to the ECOSOC consultative arrangements as specified inresolution 1996/31, provide, inter alia, that:

* the provisional agenda of the commissions shall include all itemswhich have been proposed by an NGO in general consultative status inaccordance with the procedure prescribed by the rules, provided thata two-thirds majority of the members of the commission support this(Rule 5.2(h) and 5.4),

* the agenda and the basic documents related to each item shall becommunicated to all NGOs in consultative status (Rule 6),

* NGOs in general or special consultative status may designateauthorised representatives to sit as observers at public meetings ofthe commissions and their subsidiary organs, while NGOs on theRoster may do so when matters within their field of competenceare being discussed (Rule 75),

* the functional commissions may consult with NGOs in general orspecial consultative status, and, on the recommendation of theSecretary-General and at the request of the commission, withorganisations on the Roster, either directly or through a committeeestablished for the purpose (Rule 76).

The Commission on Human Rights consists of fifty-three state representa-tives. It prepares studies, makes recommendations and drafts interna-tional human rights conventions and declarations. Among theinstruments drafted within the Commission are the UniversalDeclaration of Human Rights, the two human rights Covenants of1966, and the issue-oriented human rights conventions, such as theCAT and the Convention on the Rights of the Child (CRC). As described

97 E/5975/Rev.1, Rules of Procedure of the Functional Commissions of the Economic and SocialCouncil, 3 June 1994.


in chapter 5, the Commission also investigates allegations of humanrights violations and handles communications relating to them underthe 1503 Procedure.98

Almost 250 NGOs were represented at the 2003 session of theCommission on Human Rights.99 NGOs may submit written and oralstatements as provided for in resolution 1996/31 on consultativearrangements. Because of the large number of NGOs that participatein the sessions of the Commission, the number and length of their oralstatements is limited.100 Written statements by NGOs in general orspecial consultative status are issued as official UN documents, andare made available in the three working languages of the Commissionif submitted in sufficient time before the session.101 NGOs are, however,not allowed to distribute any of their own material in the conferenceroom.102 Apart from direct participation, parallel meetings focused onitems dealt with by the Commission or its preparatory committee maybe organised by NGOs in the UN conference rooms.103

NGOs have been involved in the Commission’s consideration anddrafting of many human rights instruments. A few examples arethe draft optional protocol to the ICESCR,104 the Optional Protocolto the CAT105 and the identification of Fundamental Standards ofHumanity.106 The Commission also drafted the Optional Protocol to

98 Section 5.2.99 E/2003/23/E/CN.4/135/Commission on Human Rights, Report on The Fifty-Ninth Session,

30 September 2003, annex II.100 See, e.g., E/CN.4/2001/167, Commission on Human Rights, 20 July 2001, Part II, paras.

14–15.101 Ibid., para. 29. See also, e.g., E/CN.4/2001/NGO/1,16 January 2001, and E/CN.4/2001/

NGO/102, 6 February 2001.102 E/CN.4/2001/167, Commission on Human Rights, 20 July 2001, Part II, para. 34.103 Information note for NGOs, issued on 4 February 2000 in relation to the 56th Session of

the Commission on Human Rights, Office of the United Nations High Commissionerfor Human Rights.

104 E/CN.4/2000/49, Draft Optional Protocol to the International Covenant on Economic, Social andCultural Rights, Report of the High Commissioner for Human Rights, 14 January 2000. See para.4 regarding NGO statements.

105 E/CN.4/2000/58, Report of the Working Group on the Draft Optional Protocol to the Conventionagainst Torture, 2 December 1999. For attendance and statements by NGOs, seeparas. 8, 73.

106 E/CN.4/2000/94, Fundamental Standards of Humanity, Report of the Secretary-GeneralSubmitted Pursuant to Commission Resolution 1999/65, 27 December 1999. Comments andviews from states and NGOs are integrated throughout the document. The matter wasconsidered in consultation with the ICRC, see E/CN.4/2001/91, Promotion and Protectionof Human Rights, 12 January 2001, para. 1.


the Convention on the Rights of the Child on the involvement ofchildren in armed conflicts and the Optional Protocol to theConvention on the Rights of the Child on the sale of children, childprostitution and child pornography.107 NGOs have sent observers to themeetings of standard-setting working groups – such as the (former)Working Group on a Draft Optional Protocol to the Convention againstTorture and the (former) Working Group on a Draft Optional Protocolto the Convention on the Rights of the Child on the sale of children,child prostitution and child pornography – and have presented theirviews on the drafts under discussion.108

The Open-Ended Working Group on a Draft Declaration on the Rights of

Indigenous Peoples (to be distinguished from the Working Group onIndigenous Populations of the Sub-Commission, discussed below)involves NGOs in its work to a large extent. As with all the subsidiarybodies of ECOSOC, NGOs may participate in the proceedings. In addi-tion to the ECOSOC arrangements for consultation with NGOs, theCommission on Human Rights has set up a procedure for the participa-tion of ‘organisations of indigenous people’ without consultative statuswith ECOSOC in the meetings of the Working Group.109 The meetingsare attended by a high number of representatives from indigenousorganisations and other NGOs. As an illustration, it can be mentionedthat the Working Group held nineteen meetings during the period15–26 September 2003, during which forty-four governments andeighty-two indigenous and non-governmental organizations wererepresented.110 The Working Group’s debates on the draft declarationinclude statements and text proposals of participating states as well asof indigenous and other NGOs.111

107 Adopted by A/RES/54/263, 25 May 2000. See also E/CN.4/2000/WG.13/3, Report of theChairperson of the WG on a Draft Protocol on Children in Armed Conflicts, 6 December 1999,which describes broad informal consultations with, inter alia, governments, UN bodiesand specialised agencies, IGOs and NGOs.

108 See, e.g., Working Group reports E/CN.4/2000/58, 2 December 1999, paras. 8, 73;E/CN.4/1999/59, 26 March 1999, paras. 8, 59, 90; E/CN.4/1999/74, 25 March 1999,para. 15; E/CN.4/1998/103, 24 March 1998, paras. 13–15.

109 E/CN.4/RES/1995/32, Establishment of a Working Group, para. 7 and annex.110 E/CN.4/2004/81, Indigenous issues, 7 January 2004, para. 2.111 Ibid., paras. 21 ff. See also E/CN.4/2000/84, 6 December 1999, on the meetings in

November and December 1999. The high degree of non-governmental representationat thismeetingwas regarded as a problem by some of the state representatives. Duringthe meeting it was proposed that possibilities should be provided for informalconsultations between governments during the session of the Working Group. Theindigenous caucus opposed the suggested ‘formalisation of informal meetings’


Another of the Commission on Human Rights’ working groups, ofspecial interest from a civil society point of view, is the ad hoc Open-

Ended Working Group on a Permanent Forum for Indigenous People in theUnited Nations System, which was established by the Commission in1998. The working group organised its work in a rather untraditionalway, with both state representatives and representatives of indigenouspeoples participating in the Working Group’s discussions and actingas facilitators for its meetings.112 In July 2000, ECOSOC decided toestablish the Permanent Forum on Indigenous Issues as an advisory bodyto the Council. It consists of sixteen members, eight members to benominated by governments and elected by the Council, and eightmembers to be appointed by the President of the Council. Indigenousorganisations shall be consulted before the appointment of the lattereight members. All members serve in their personal capacity as inde-pendent experts on indigenous issues for a period of three years. NGOsin consultative status with ECOSOC may participate in the Forum asobservers, as may organisations of indigenous people in accordancewith the procedures which have been applied in the Working Groupon Indigenous Populations of the Sub-Commission on the Promotionand Protection of Human Rights.113 The findings of the Council are,inter alia, addressed to ECOSOC, the United Nations and its memberstates in the form of recommendations.114

The Sub-Commission on the Promotion and Protection of Human Rights (for-merly the Sub-Commission on Prevention of Discrimination andProtection of Minorities) is the main subsidiary body of theCommission on Human Rights. The twenty-six members of the Sub-Commission are nominated by states but act in an independent capacity

excluding the participation of indigenous peoples. A representative of one of theindigenous organisations stated that to legitimise informal governmental meetingsduring the Working Group session would violate the principle established inCommission onHuman Rights resolution 1995/32, which provided for the participationof indigenous representatives. The United States and Canada – both states withindigenous peoples within their territories – endorsed the proposal for informalconsultations while New Zealand agreed to striking informal governmental meetingsfrom the work plan. The Working Group adopted a revised work programme whichallowed for the plenary to be suspended if requested by the participants. Theindigenous representatives were allowed to be present at the informal consultationsin order to allow for transparency, but could not take an active role, see paras. 18–25.

112 E/CN.4/2000/86, Report of the Open-Ended Inter-Sessional, 28 March 2000.113 E/RES/2000/22, Establishment of a Permanent Forum on Indigenous Issues, 28 July 2000,

paras. 1–2.114 See, e.g., the recommendations of the Forum’s third session, E/2004/43, Permanent

Forum on Indigenous Issues, Report on the Third Session, 10–21 May 2004, paras. 2 ff.


as experts. The functions of the Sub-Commission include the prepara-tions of studies, the review of specific country situations and humanrights standard-setting, although the last function has been givenless emphasis in favour of promotion and implementation duringrecent years.115 The Sub-Commission has adopted guidelines for itsapplication of the Rules of Procedure of the Functional Commissions.These guidelines establish rules for consultation with and representa-tion of NGOs that are identical with the rules of the functionalcommissions.116

Themeetings of the Sub-Commission are regularly attended by a largenumber of NGO observers; NGOs by far outnumber states, as bothorganisations and as individual representatives.117 Written statementssubmitted by NGOs to the Sub-Commission are published as officialUN documents.118 David Weissbrodt, who is a former member of theSub-Commission, emphasises the role of NGOs in the work of the Sub-Commission, in particular as regards country situations. During thesessions of the Sub-Commission, NGOs submit reports and makewritten and oral statements which, together with other information,provide a basis for the Sub-Commission’s decisions as to which countrysituations to review and address in resolutions. In general, the Sub-Commission attempts to maintain an open dialogue between itsmembers and representatives of NGOs, IGOs and governments.119

The Sub-Commission has established several working groups. Theannual Working Group on Indigenous Populations, established by ECOSOCin 1982, is probably one of the UN bodies with the highest level of NGOattendance.120 TheWorking Group consists of independent experts andmembers of the Sub-Commission and is open to all representatives ofindigenous peoples and their communities and organisations, as well asto representatives of governments, NGOs and UN agencies. As an

115 David Weissbrodt, ‘An Analysis of the Fifty-First Session of the United NationsSub-Commission on the Promotion and Protection of Human Rights’, 22 HRQ (2000),p. 790.

116 Guidelines for the Application by the Sub-Commission on the Promotion and Protection of HumanRights of the Rules of Procedure of the Functional Commissions of the Economic and Social Counciland other Decisions and Practices Relating Thereto, in E/CN.4/2000/2, 11 November 1999,Decision 1999/114.

117 See, e.g., E/CN.4/Sub.2/AC.4/1999/INF.2, Final List of Attendance, 30 July 1999.118 See, e.g., E/CN.4/Sub.2/2000/NGO/10, Written Statement Submitted by North–South XXI,

12 July 2000.119 Weissbrodt, ‘An Analysis of the Fifty-First Session’, pp. 791–792.120 E/RES/1982/34, Study of the Problem of Discrimination, 7 May 1982.


example, over 1,000 persons participated in the 2000 session of theWorking Group, including representatives of forty-five member statesand 248 indigenous and (other) NGOs.121 Information received by theWorking Group from NGOs on different issues is published and distrib-uted as UN documents. Indigenous and other NGO representatives alsodeliver oral statements in the meetings of the Working Group, asreflected in its reports.122

TheWorking Group has considered and delivered studies on differentthemes, such as indigenous peoples and their relationship to land.123 Itsmost important achievement in terms of standard-setting has been theelaboration of the Draft UN Declaration on the Rights of IndigenousPeoples, which was completed in 1993 after nearly ten years of workwith the participation of many hundreds of indigenous organisations.After the draft was adopted by the Sub-Commission and submitted tothe Commission on Human Rights, the Commission set up the Open-Ended Working Group on a Draft Declaration on the Rights ofIndigenous Peoples noted above, which has not yet completed itswork. When or if the declaration is finally adopted, the participationof indigenous groups and NGOs in the Working Group is likely toincrease the possibility that the instrument is perceived as legitimateby the groups whose rights it is intended to protect.

The Working Group also reviews developments related to the situa-tion of indigenous groups in different parts of the world. The WorkingGroup provides an important forum in this respect, as the indigenouscommunities themselves may participate in the meetings and discusstheir situation with state representatives.124

Following the UN Conference on Environment and Development in1992, the General Assembly requested ECOSOC to set up a Commission on

Sustainable Development (CSD) in order to ensure effective follow-up to theConference, to enhance international co-operation for the integrationof environment and development issues and to examine progress in theimplementation of Agenda 21.125 ECOSOC established the Commissionin 1993 with several functions enumerated by the Assembly, among

121 E/CN.4/Sub.2/2000/24, Human Rights of Indigenous Peoples, 17 August 2000, para. 6.122 Ibid., paras. 19–23.123 E/CN.4/Sub.2/1997/17, Preliminary Working Paper, 20 June 1997 and Corr.1 and E/CN.4/

Sub.2/1999/19, Report of the Working Group, 12 August 1999.124 For more details regarding the work of the Working Group, see Weissbrodt, ‘An

Analysis of the Fifty-First Session’, pp. 825–829.125 A/RES/47/191, Institutional Arrangements, 29 January 1993, paras. 2–3.


them to monitor progress in the implementation of Agenda 21, toconsider information provided by governments, to review and analyserelevant input from competent NGOs, including those in the scientificand the private sector, in the context of the implementation of Agenda21, and to enhance dialogue with NGOs and the independent sector.126

The CSD does not draft international environmental instruments, but isof interest because two of its functions are specifically related to NGOs.This was a natural consequence of the large involvement of NGOs in theRio Conference and the recognition of the role of NGOs and ‘majorgroups’ expressed in Agenda 21.127 The Commission has drawn up itsown Roster for relations with NGOs, in addition to NGOs which partici-pate on the basis of their consultative status with ECOSOC.128 Thismeans that NGOs in consultative status with ECOSOC, as well asNGOs included on the CSD’s Roster, may participate in the sessionsof the Commission; 145 NGOs were represented as observers atthe Commission’s eleventh session in 2003.129 The modalities forco-operation are regulated by ECOSOC consultative arrangements.

The extra-conventional mechanisms include the country and thematicrapporteurs, the special representatives and a range of working groupscreated by the General Assembly and the functional commissions.Although the thematic mechanisms have no formal complaints proced-ure, some of them do receive communications regarding human rightsviolations. These are submitted from different sources, such as thevictims or their relatives, or NGOs.

The Working Group on Enforced or Involuntary Disappearancesassists the relatives of disappeared persons in ascertaining their fateand whereabouts and acts as a channel of communication between thefamilies and the governments concerned. In 2003, 41,934 cases wereunder active consideration by the Working Group, as they had not yetbeen clarified or discontinued.130 During the same year, the WorkingGroup clarified 837 cases of enforced disappearance.131 The WorkingGroup has also established an urgent action procedure under which its

126 E/1993/207, Establishment of the Commission on Sustainable Development, 12 February 1993.127 See section 8.3.128 E/1998/29, Commission on Sustainable Development, Report on the Sixth Session, pp. 90–91.129 E/2003/29, Commission on Sustainable Development, Report on the Eleventh Session, para. 10

and annex II.130 E/CN.4/2004/58, Civil and Political Rights, Including the Questions of Disappearances and

Summary Executions, 21 January 2004, p. 2.131 Ibid., para. 5.


chairperson is authorised to process cases immediately. In 2003, theWorking Group sent urgent action appeals to governments concerningforty-three cases.132 Information on disappearances is submitted to theWorkingGroup by representatives of human rightsNGOs, associations ofrelatives ofmissing persons and by relatives of disappeared persons.133 Italsomeetswith representatives of NGOs to discuss itsmethods ofwork.134

Similar methods are used by the Working Group on ArbitraryDetention, which is entrusted with the investigation of instances ofalleged arbitrary deprivation of liberty. During the reporting periodJanuary–December 2001, the Working Group submitted 167 individualcases to governments. Of these, sixty-three were based on informationcommunicated by local or regional NGOs, seventy-eight on informationprovided by international NGOs in consultative status with ECOSOC,and twenty-six by private sources.135 Obviously, NGOs constitute themost important source of information on individual cases of arbitrarydetention investigated by the Working Group.

Generally speaking, NGOs are an important source of information formany of the country and thematic rapporteurs. Sir Nigel Rodley, whoheld the position of Special Rapporteur of the Commission on HumanRights on the question of torture from 1993 until 2001, considered thathe could not have carried out his work adequately without the inform-ation submitted by NGOs, which provided around 90 per cent of allinformation received by him.136 The working methods of the rappor-teur include the sending of urgent appeals, the transmittal of informa-tion alleging violations to governments and the carrying out ofmissionsto UNmember states.137Apart from receiving reports and other types ofinformation from NGOs, the rapporteur meets with NGOs on his coun-try visits.138

132 Ibid.133 E/CN.4/2001/68, Civil and Political Rights, Including the Questions of Disappearances and

Summary Executions, 18 December 2000, para. 19.134 Ibid., paras. 21–23.135 E/CN.4/2002/77, Civil and Political Rights, Including the Questions of Torture and Detention,

19 December 2001, para. 13.136 Interview with Sir Nigel Rodley, 16 November 2000. In an article, Rodley observes that the

non-treaty-based mechanisms ‘would simply not be able to function effectively withoutNGOs’, see ‘Human Rights NGOs: Rights and Obligations’, in Theo Van Boven et al.(eds.), The Legitimacy of the United Nations: Towards an Enhanced Legal Status of Non-StateActors, Netherlands Institute of Human Rights, SIM Special, 19, Utrecht, 1997, p. 55.

137 Regarding the Special Representative of the Secretary-General on the situation ofhuman rights defenders, see section 4.2.

138 See also, e.g., E/CN.4/2000/9/Add.4, Civil and Political Rights, 9 March 2000, para. 4.


The UN treaty bodies

Introduction

The status of NGOs as petitioners or counsel to petitioners before thetreaty bodies has been described earlier.139 This section focuses onother forms of relations between the treaty bodies and NGOs.

Seven committees have been established to monitor the implementa-tion of the principal international human rights treaties: the HumanRights Committee (which monitors the implementation of the ICCPR),the Committee on Economic, Social and Cultural Rights (which monit-ors the ICESCR), the Committee against Torture (which monitors CAT),the Committee on the Elimination of Racial Discrimination (whichmonitors CERD), the Committee on the Elimination of DiscriminationagainstWomen (whichmonitors CEDAW), the Committee on the Rightsof the Child (which monitors the CRC) and the Committee on theProtection of the Rights of All Migrant Workers and Members of theirFamilies (which monitors the Convention on the Protection of theRights of All Migrant Workers and Members of Their Families).

In general, it can be observed thatNGOs play an increasingly importantrole in thework of human rights treaty bodies. At a jointmeeting in 1996on the effective implementation of human rights instruments, the chair-persons of the treaty bodies affirmed ‘once again that non-governmentalorganizations play a vital role in supplying the treaty bodies with docu-mentation and other information on human rights developments that isextremely useful for theirmonitoring activities and that each treaty bodyshould consider how best to monitor and facilitate this role’. The chair-persons encouraged NGOs to continue to take an active role in criticallyexamining the work of the treaty bodies.140 Sir Nigel Rodley holds thatNGOs play a most important role in submitting information to membersof the respective bodies, thereby ensuring that they are in a position toquestion the version presented in official state reports.141 With theexception of the Committee on Economic, Social and Cultural Rights,the treaty bodies are not subsidiary bodies of ECOSOC, and the ECOSOCconsultative arrangements are therefore not applicable to NGO–treatybody relations.

139 Section 5.2.140 A/51/482, Human Rights Questions, 11 October 1996, paras. 35–36. See also A/52/507,

21 October 1997, para. 61.141 Rodley, ‘Human Rights NGOs’, p. 52.


The Human Rights Committee

Neither the ICCPR nor the Human Rights Committee’s Rules ofProcedure contain any provisions on co-operation with or informationfrom NGOs. However, under Rule 62 of its Rules of Procedure, theCommittee establishes working groups whichmeet before each sessionto prepare lists of issues concerning the state party reports to be con-sidered by the Committee during that particular session, and it is anestablished practice of the working group to hold discussions withrepresentatives of NGOs.142 This practice is reflected in theCommittee’s annual reports to the General Assembly.143 The purposeof these discussions is to obtain advance information on the state partyreports to be considered during the session.144 The information sub-mitted by NGOs to the different treaty bodies is often presented in theform of parallel (or ‘shadow’) reports to state party reports.145

In its reports, the Committee has welcomed the presence of NGOs atopen meetings for the consideration of state party reports, althoughthese organisations may not take part in the dialogue between stateparties and the committee.146 Meetings for the consideration of indivi-dual or state communications regarding violations of the Conventionare closed.147 In its consideration of the report prepared by Nigeria in1996, the Committee emphasised that NGOs are entitled to take part inthe meetings at which state reports are under consideration and thatstate parties should not prevent this:

The Committee wishes to emphasize that the consideration of reports sub-mitted under article 40 of the Covenant takes place in public meetings and inthe presence of representatives of the State party concerned. Representatives ofnon-governmental organizations, whether internationally or locally based, areentitled to attend the meetings at which reports are being considered and to

142 CCPR/C/3/Rev.7, Rules of Procedure of the Human Rights Committee, 4 August 2004.143 See, e.g., the Reports of the Human Rights Committee (Vol. I), A/54/40, 21 October 1999, para.

18; A/55/40, 10 October 2000, para. 17; A/57/40, 30 October 2002, para. 17. AmnestyInternational, Human Rights Watch and the Lawyers Committee for Human Rightswere among the NGOs heard on these three occasions.

144 A/57/40, Report of the Human Rights Committee, 30 October 2002, para. 17.145 See also regarding meetings between Committee members and NGOs prior to the

sessions, Andrew Clapham, ‘UN Human Rights Reporting: An NGO Perspective’, inPhilip Alston and James Crawford (eds.), The Future of UN Human Rights Treaty Monitoring,Cambridge University Press, 2000, pp. 176–181.

146 See, e.g., A/54/40, 21 October 1999, para. 144 and A/52/40, 21 September 1997, para. 80.147 Rules 75 and 96.


provide information to members of the Committee on an informal basis. TheGovernment of Nigeria should ensure that individuals (including members ofnon-governmental organizations) are not prevented from leaving Nigeria toattend the Committee’s sessions, should conduct immediate investigationsinto the allegations mentioned in paragraph 290 above, and should inform theCommittee of the result of these investigations.148

The background to this statement was allegations by a Nigerian NGOthat two of its officials had been prevented by the State Security Servicefrom attending the session of the Committee and had had their pass-ports impounded.

The Committee sometimes refers to written information submittedby NGOs in its concluding observations on state party reports when thestate’s information has been incomplete or contradictory of othersources, or even expresses its regret that no NGO submitted inform-ation.149 A formulation often used by the Committee is that: ‘Theinformation submitted by a wide range of non-governmental organiza-tions also assisted the Committee in its understanding of the humanrights situation in the State party.’150 State co-operation with NGOs onthe national plane in activities related to the implementation of theCovenant is seen as a positive factor by the Committee.151

The Committee on Economic, Social and Cultural Rights

The functions of the Committee on Economic, Social and CulturalRights are similar to those of the treaty bodies, although it was notestablished under a treaty but by means of an ECOSOC resolution.152

The Committee is thus a subsidiary body of ECOSOC, and the latter’sarrangements for consultation with NGOs are applicable to it. Becauseof the treaty monitoring function of the Committee, however, it hasestablished its own procedures for relations with NGOs in addition tothose of ECOSOC in general. The Committee adopted a procedure

148 A/51/40, 24 July 1996, paras. 290, 304.149 See, e.g., A/54/40, 21 October 1999, para. 141, A/53/40; 15 September 1998, para. 139;

A/52/40, 21 September 1997, paras. 266, 418.150 A/52/40, 21 September 1997, para. 266 (regarding Colombia). See also A/53/40,

15 September 1998, para. 139 (regarding Belarus).151 See, e.g., A/54/40, 21 October 1999, paras. 102, 222; A/53/40, 15 September 1998, paras.

56, 123, 208.152 E/RES/1985/17, Review of the Composition, Organization, 28 May 1985.


concerning the participation of NGOs in its activities in 1993, whichwassupplemented in 2000 by detailed guidelines.153

The main activities that are open to NGO participation are consider-ation of state party reports, days of general discussion and drafting ofgeneral comments. As regards the consideration of state party reports,NGOs can participate at several stages of the procedure.154 NationalNGOs working within the field of economic, social and cultural rightsare encouraged to contact the Committee Secretariat when a party hasratified the Covenant. Once a state party has submitted a report, theSecretariat of the Committee establishes a list of national NGOs andcontacts them in writing to solicit information regarding the implement-ation of the Covenant. NGOs can submit any type of information theyconsider relevant to the Secretariat or to the pre-sessional workinggroups which are set up to prepare for the consideration of state reportsduring the next session. During the Committee’s session, informationcan be submitted in the form of a parallel report and/or oral statementswithin the framework of the Committee’s NGO hearings which arearranged on the first day of each reporting session. The Committee isalso interested in information as a follow-up to its concluding observa-tions regarding a country. The information thus collected is included inthe Committee’s country file.

NGOs in general or special consultative status with ECOSOC maysubmit written statements to the Committee at its reporting sessions.NGOs without such status may submit written statements if they aresupported by an NGO with consultative status. Statements thus sub-mitted are translated into the working languages of the Committee andissued as UN documents if they have been submitted threemonths priorto the session.

NGO information regarding non-reporting states is considered as‘especially valuable’. NGO reports structured as an official state report,i.e. discussing article by article the implementation of the Covenant, areespecially appreciated. According to the guidelines, it is also ‘highlyrecommended’ as regards non-reporting states that NGOs participatein the Committee’s NGO hearings and submit oral information regard-ing the country in question.155

153 E/1994/23, Report of the Committee on Economic, Social and Cultural Rights, 1993, para. 354;E/C.12/1993/WP.14, Non-Governmental Organizations Participation in Activities of theCommittee on Economic, Social and Cultural Rights, 12 May 1993; E/C.12/2000/6, SubstantiveIssues, 7 July 2000.

154 Ibid., paras. 4–29. 155 Ibid., paras. 28–29.


As mentioned above, NGOs are entitled to participate in theCommittee’s days of general discussions on particular rights or aspectsof the Covenant. Specialised NGOs may submit background inform-ation to the Committee, as well as send their experts to participate inthe meetings.156

Finally, the Committee receives information from NGOs for the pur-pose of drafting its General Comments on the Articles of the Covenant.During the stages and drafting of such Comments, specialised NGOsmay address the Committee in writing. NGOs may also make short oralinterventions during the discussion of a Comment.157

The Committee Against Torture

As part of its examination of state party reports on the implementationof the Convention, the CAT regularly receives information fromNGOs.158 The legal basis of this practice is contained in Rule 62(1) ofthe Committee’s rules of procedure, which states that ‘the Committeemay invite . . . non-governmental organizations in consultative statuswith the Economic and Social Council to submit to it information,documentation and written statements, as appropriate, relevant to theCommittee’s activities under the Convention’.159 The participation ofNGOs in national activities undertaken to contribute to the implemen-tation of the Convention is also regarded by the Committee as a positivefactor.160

Article 20(1) of the Convention states that if the Committee receivesreliable information which appears to contain well-founded indicationsthat torture is being systematically practised in the territory of a stateparty, the Committee shall invite that state to co-operate in the exam-ination of the information. On the basis of the initial information, theCommittee may decide to request additional information, from therepresentatives of the state concerned, from IGOs, NGOs or indivi-duals.161 It can be presumed that NGOs are an important source ofinformation for the procedure under Article 20, even if information

156 Ibid., paras. 30–31. 157 Ibid., paras. 32–33.158 See e.g. A/53/44,16 September 1998, para. 111; A/54/44, Report of the Committee against

Torture, 24 June 1999, para. 160; A/57/44, 1 November 2002, paras. 125, 130, 134.159 CAT/C/3/Rev. 4, Rules of Procedure, 9 August 2002.160 See, e.g., A/54/44, Report of the Committee against Torture, 24 June 1999, paras. 134 and

143; A/53/44, 16 September 1998, para. 247.161 CAT/C/3/Rev. 4, Rules of Procedure, 9 August 2002, Rules 75(1), 76(4).


on such cases is published only if the Committee decides so after theinquiry has been concluded. During the 1990s, information on Article20 inquiries was published in only two cases; Amnesty Internationalwas an important source of information in both investigations.

In an inquiry on Egypt which was begun in 1996, the initial information was

submitted by Amnesty International.162 The Committee decided to invite

Amnesty International to submit additional relevant information substantiat-

ing the facts of the situation, including statistics. Information was also sub-

mitted by other NGOs.163 In its conclusions, the Committee noted that the

information on allegations of torture in Egypt had been provided mainly by

the Special Rapporteur of the Commission on Human Rights on questions

relating to torture, Amnesty International, the Egyptian Organization for Human

Rights, and the World Organization against Torture. Other non-governmental

sources had occasionally provided information during the inquiry. The NGOs

claimed that torture had been regularly practised by the Egyptian police forces,

especially by the State Security Intelligence, while the government stated

that it remained committed to applying the articles of the Convention and

that violations of the laws prohibiting torture constituted exceptional individual

cases. The Committee found that there was a clear contradiction between the

allegations made by non-governmental sources and the information provided by

the government with regard to the role of the Egyptian security forces and the

methods they used. As the government did not accept a visit by the Committee,

it had to draw its conclusions on the basis of the information available to it.

The Committee stated that: ‘On the basis of this information, the Committee is

forced to conclude that torture is systematically practised by the security forces

in Egypt, in particular by State Security Intelligence, since in spite of the

denials of the Government, the allegations of torture submitted by reliable non-

governmental organizations consistently indicate that reported cases of torture

are seen to be habitual, widespread and deliberate in at least a considerable part of

the country.’164

It is interesting to note that the Committee preferred to trust the non-governmental information rather than that of the government in thiscase. One factor which was explicitly mentioned by the Committee as aground for relying on the information provided by NGOs was that agreat number of coinciding allegations had come from differentsources.165 The other case on which the Committee decided to publishinformation concerned Turkey, concerning which an account wasincluded in its Sixth Annual Report of 1993.166 In this case, the

162 A/51/44, 3 May 1996, para. 181. 163 Ibid., paras. 182–183. 164 Ibid., paras. 201–220.165 Ibid., para. 219. 166 A/48/44/Add.1, 15 November 1993.


Committee received numerous allegations of torture in Turkey originat-ing mainly from five international and five Turkish human rightsNGOs.167 In 2001 and 2002, the Committee also published informationon the situations in Peru and Sri Lanka. In these two cases, the initialinformation also came from NGOs.168

As has been discussed in chapter 5, the Committee also receivesindividual communications regarding violations of the Convention.

The Committee on the Elimination of Discriminationagainst Women

Apart from the complaints mechanism described in chapter 5, theCommittee co-operates with NGOs in several ways. The Committee’sRules of Procedure include a general provision regarding co-operationwith NGOs:

Representatives of non-governmental organizations may be invited by theCommittee to make oral or written statements and to provide information ordocumentation on areas relevant to the Committee’s activities under theConvention to meetings of the Committee or to the pre-session workinggroup.169

Since 1997, the Committee has invited representatives of national andinternational NGOs to a meeting of the pre-session Working Group.170

During the meeting, NGOs are invited to offer country-specific inform-ation on the state parties that are to be reviewed by the Committee.One form of providing such information consists of reports preparedby NGOs and disseminated to the Committee members parallel tostate party reports. The Committee recommends that state partiesconsult national NGOs in the preparation of their reports as required

167 Ibid., para. 36.168 A/56/44, Report of the Committee Against Torture, 26 October 2001, para. 146; A/57/44,

1 November 2002, para. 125.169 Rules of Procedure of the Committee on the Elimination of Discrimination AgainstWomen, Article

47, in HRI/GEN/3, Compilation of Rules of Procedure Adopted by Human Rights Treaty Bodies,6 June 2001.

170 See Report of the Committee on the Elimination of Discrimination againstWomenA/52/38/Rev.1,12 August 1997, Decision 16/II; A/53/38/Rev.1, 14 May 1998, Decision 18/I; A/54/38, 4 May1999, Decision 20/1. See also CEDAW/C/1997/5,Ways and Means of Expediting the Work of theCommittee, 6 December 1996, paras. 28–48 and Mara R. Bustelo, ‘The Committee on theElimination of Discrimination Against Women at the Crossroads’, in Philip Alston andJames Crawford (eds.), The Future of UN Human Rights Treaty Monitoring, CambridgeUniversity Press, 2000, pp.104–108.


by Article 18 of the Convention.171 NGO comments are occasionallyincluded in the official state party reports.172

NGOs are sometimes asked to pressurise their governments on differ-ent issues. In the report on its twentieth session, the Committee notedthat a number of NGOs had been requested by the Committee’sChairperson to encourage ratification of the Convention. TheCommittee further noted that, as a result of those efforts, several stateshad accepted the Convention.173 In general, co-operation between stateparties and NGOs on the national plane in activities related to theimplementation of the Covenant is seen as a positive factor by theCommittee, and is encouraged.174

The Committee also collaborates with NGOs in its preparation ofGeneral Recommendations on particular Articles or aspects of theConvention.175

The Committee on the Elimination of Racial Discrimination

Like the other treaty bodies, the Committee on the Elimination of RacialDiscrimination (CERD) examines state party reports. Originally, theCommittee did not deal with information submitted by NGOs, as thereis no explicit support for this in the Convention.176 In 1991, however,the Committee decided that ‘in examining the reports of State parties,members of the Committee must have access, as independent experts,

171 A/52/38/Rev.1, 12 August 1997, Decision 16/II, Non-Governmental Organizations. In thisdecision, the Committee ‘recommended that States parties consult national non-governmental organizations in the preparation of their reports required by article 18of the Convention. It recommended that international non-governmentalorganizations and United Nations agencies, funds and programmes be encouraged tofacilitate attendance at Committee sessions by representatives of national non-governmental organizations. It also recommended that specialized agencies and otherUnited Nations entities with field representation work with non-governmentalorganizations to disseminate information on the Convention and on the work of theCommittee and to call upon past and present experts of the Committee to participatein those efforts.’ As regards the participation of NGOs in the preparation of State Partyreports, see also, e.g., A/54/38, 4 May 1999, paras. 140, 334.

172 A/52/38/Rev.1, 12 August 1997, para. 256.173 A/54/38, Report of the Committee on the Elimination of Discrimination Against Women, 4 May

1999, para. 33.174 Ibid., paras. 59, 86, 224; A/53/38/Rev. 1, 14May 1998, paras. 189 and 385; A/57/38 (Part I),

7 May 2002, paras. 84, 118, 135, 184.175 A/54/38, Report of the Committee on the Elimination of Discrimination Against Women, 4 May

1999, General Recommendation 24, para. 3; A/57/38 (Part I), 7 May 2002, para. 416.176 Interview with Peter Nobel, former member of the Committee, 29 September 2000.


to all other available sources of information, governmental and non-governmental’.177 The Committee now regularly receives informationfrom NGOs. According to Peter Nobel, who is a former member of theCommittee, it would be difficult for it to carry out its work effectivelywithout the information submitted by NGOs, as the information con-tained in state party reports tends to be one-sided and focused onlegislation and statistics, rather than on actual realities.178 The type ofinformation fromNGOs that ismost useful for the Committee is shadowreports structured in the same way as the official state reports.179 Ingeneral, information submitted by several NGOs jointly is regarded asmore reliable than information filed by an individual organisation.There is no requirement that NGOs which submit information shouldbe in consultative status with ECOSOC. In its concluding observationson state party reports, the Committee occasionally refers to informa-tion submitted by NGOs when the information provided by the state isincomplete or contradicts other sources.180 The Committee welcomesthe participation of NGOs in the preparation of state party reports.181 Italso regards co-operation between state parties and NGOs in activitiesaimed at promoting the implementation of the Convention on thenational plane as something positive. One example of this approach isthe recommendation of the Committee that ‘the State party takemeasures aimed at establishing a genuine dialogue between theGovernment and non governmental organizations in the fight againstracial and ethnic discrimination’.182

177 Decision 1 (XL) of 13 August 1991; A/46/18, Report of the Committee on the Elimination ofRacial Discrimination, 1992, p. 104.

178 Interview with Peter Nobel, former member of the Committee, 29 September 2000.179 Some NGOs specialise in collecting and structuring information from other NGOs and

submitting it to the country Rapporteur of the Committee prior to each session. As theCommittee’s Secretariat has limited capacity, this service is much appreciated by theCommittee. One NGO, the Anti Racism Information Service (ARIS) has an importantrole in this respect and is sometimes referred to in the Committee as ‘our nineteenthmember’. Ibid.

180 See, e.g., Report of the Committee on the Elimination of Racial Discrimination, A/53/18,10 September 1998, paras. 102, 124; A/57/18, 1 November 2002, paras. 261, 498. Seealso the comments of Australia in A/55/18 (Annex X, p. 168), where the governmentstated that it was ’very disappointed that the Committee . . . gave undue weight toNGO submissions, and strayed from its legitimate mandate’.

181 See, e.g., A/54/18, 29 September 1999, paras. 421, 442, 483.182 A/54/18, 29 September 1999, para. 163. See also, e.g., A/57/18, 1 November 2002, paras.

151, 304.


As a result of recommendations contained in the Report of theseventh meeting of persons chairing human rights treaty bodies, theChairman of the Committee on the Elimination of Racial Discriminationbegan a practice at its fiftieth session in 1995 of holding a separateinformal hearing with NGOs towards the end of each session.183 NGOsare, however, not permitted to deliver oral statements during theCommittee’s formal sessions.184

Apart from the examination of state party reports, the Committee onthe Elimination of Racial Discrimination has developed practices fordealing with early warnings and urgent cases. These activities dependon information from all types of sources, including NGOs. TheCommittee also hold thematic discussions, which sometimes includeinformal hearings with NGOs.185

The Committee receives complaints from individuals claiming to bethe victims of a violation of the Convention. The participation of NGOsin this procedure has been discussed in chapter 5.

The Committee on the Rights of the Child

In spite of the fact that there is no complaints mechanism connected tothe International Convention on the Rights of the Child (ICRC), theCommittee on the Rights of the Child has extensive collaboration withNGOs. In contrast to the treaty bodies described above, the Committeeon the Rights of the Child has a legal basis for co-operatingwithNGOs inthe Convention. Article 45 of the Convention provides that:

In order to foster the effective implementation of the Convention and to encour-age international co-operation in the field covered by the Convention:

a. . . . The Committee may invite the specialized agencies, the UnitedNations Children’s Fund and other competent bodies as it may considerappropriate to provide expert advice on the implementation of theConvention in areas fallingwithin the scope of their respectivemandates.

b. The Committee shall transmit, as it may consider appropriate, to thespecialized agencies, the United Nations Children’s Fund and othercompetent bodies, any reports from States Parties that contain a

183 A/52/18, 26 September 1997, para. 654 (c). The recommendation of the chairpersons ofthe treaty bodies is contained in document A/51/482, Human Rights Questions:Implementation of Human Rights Instruments, 11 October 1996, paras. 35–36 (see alsocitation at the beginning of this chapter).

184 Interview with Peter Nobel, former member of the Committee, 29 September 2000.185 Ibid.


request, or indicate a need, for technical advice or assistance, alongwith the Committee’s observations and suggestions, if any, on theserequests or indications.

The expression ‘other competent bodies’ was specifically intended toinclude NGOs. NGOs in general are thereby given a kind of mandateactively to participate in the implementation of the CRC.186 The role ofNGOs in this work is evidenced by the annual reports of the Committeeon the Rights of the Child, which include information on theCommittee’s co-operation with the United Nations and ‘other compet-ent bodies’.187 It can also be noted that the NGOs which co-operate withthe Committee on the Rights of the Child are co-ordinated amongthemselves within the framework of the NGO Group, which had animportant role in the drafting of the Convention.188

Article 45(c) of the Convention empowers the Committee to requestthat the Secretary-General undertake studies on matters of generalinterest to all state parties. The Committee on the Rights of the Childhas in practice not only requested the Secretary-General to undertakesuch studies, but has also turned to NGOs, which have carried out anumber of research projects.189

In order to facilitate the Committee’s workwith state party reports, aswell as under Article 45 of the Convention, pre-session working groupsare held, to which NGOs are regularly invited.190 During these meet-ings, state party reports are reviewed and the main questions which

186 Cynthia Price Cohen, ‘The United Nations Convention on the Rights of the Child’, inTheo C. Van Boven et al. (eds.), The Legitimacy of the United Nations: Towards an EnhancedLegal Status of Non-State Actors, Netherlands Institute of Human Rights, SIM Special, 19,Utrecht, 1997, p. 180 and ‘The Role of NGOs in the Drafting of the Convention on theRights of the Child’, 12 HRQ (1990), p. 146.

187 See, e.g., CRC/C/87, Committee on the Rights of the Child, Report on the Twenty-First Session,30 July 1999, paras. 256–259. See also Claire Breen, ‘The Role of NGOs in theFormulation of and Compliance with the Optional Protocol to the Convention on theRights of the Child on Involvement of Children in Armed Conflict’, 25 HRQ (2003),pp. 458–459.

188 Price Cohen, ‘The United Nations Convention on the Rights of the Child’, pp. 173–184.189 Ibid., p. 180.190 In theWorking Group arranged prior to the thirty-fifth session, the NGOGroup for the

Convention on the Rights of the Child and several other NGOs were represented, CRC/C/137, Report on the Thirty-Fifth Session, 11 May 2004, para. 10. Most members of theCommittee participated, as did representatives of ILO, OHCHR, UNESCO, UNHCR,UNICEF and WHO.

CO-OPERAT ION WITH INTERGOVERNMENTAL ORGAN I SAT IONS 405

need to be discussed with state representatives are identified. TheCommittee also receives written information submitted by NGOs.191

Committee on the Protection of the Rights of All MigrantWorkers and Members of Their Families

Just as in the case of the Committee on the Rights of the Child, there is abasis in the Convention for co-operation between NGOs and theCommittee on the Protection of the Rights of All Migrant Workers andMembers of Their Families. Article 74(4) states that:

The Committee may invite the specialized agencies and organs of the UnitedNations, as well as intergovernmental organizations and other concernedbodies to submit, for consideration by the Committee, written information onsuch matters dealt with in the present Convention as fall within the scope oftheir activities.192

The Committee’s provisional Rules of Procedure made it clear that theexpression ‘other concerned bodies’ covers NGOs. According to Rule 28,the expression refers to ‘national human rights institutions, non-governmental organizations, and other bodies’.193 The Committeeheld its first session in March 2004 and has so far not initiated itsconsiderations of state party reports. It remains to be seenwhat practiceit develops in relation to NGOs.

Discussions on reform of UN–civil society relationships

It has been mentioned earlier that, in his report to the Fifty-SeventhGeneral Assembly, the Secretary-General highlighted the engagementof civil society as an aspect of the UN reform process and announcedthat he would ‘assemble a group of eminent persons representing avariety of perspectives and experiences to review past and currentpractices and recommend improvements for the future in order tomake the interaction between civil society and the United Nationsmore meaningful’. According to the Panel’s Terms of Reference, itshould, inter alia, (1) review existing guidelines, decisions and practices

191 Formore information on the reporting process under the ICESCR and the role of NGOsin this regard, see Gerison Lansdown, ‘The Reporting Process under the Convention onthe Rights of the Child’, in Philip Alston and James Crawford (eds.), The Future of UNHuman Rights Treaty Monitoring, Cambridge University Press, 2000, pp. 113–127.

192 International Convention on the Protection of the Rights of All Migrant Workers andMembers of Their Families (1990).

193 CMW/C/L.1, Provisional Rules of Procedure, 13 February 2004.


regarding civil society organisations’ access to and participation in UNdeliberations and processes, (2) identify best practices in the UN and inother IGOswith a view to identifying new and better ways of interactionwith NGOs and other civil society organisations and (3) examine theways in which participation of civil society actors from developingcountries could be facilitated. In February 2003 the Secretary-Generalappointed a group of eleven persons to form the Panel.194 The Panelheld three meetings and a large number of consultation meetings withNGOs. It published its final report under the title ‘We the Peoples: CivilSociety, The United Nations and Global Governance’ in June 2004.195

In reaching its recommendations, the Panel built on four main prin-ciples, namely that the UN should (i) become an outward-looking org-anisation, (ii) embrace a plurality of constituencies, (iii) connect thelocal with the global, as the deliberative and operational spheres ofthe United Nations are separated by a wide gulf and (iv) help strengthendemocracy for the twenty-first century. The discussions are detailed andprovide a great deal of interesting thought andmaterial on the issues ofglobal governance, civil society, the role of the United Nations and thechallenges it is facing. It is impossible to give justice to it within thecontext of this study. Some of the Panel’s more general considerationshave been mentioned in chapter 1; here, I shall mention only some ofthe more concrete reform proposals made by the Panel that have directconnections to the UN–NGO relationships described above.

Several of the proposals have the aim of improving and deepening themodalities for co-operation with NGOs. In general, it is considered thatUN–civil society engagements should be strengthened. Themain reasonfor this is that it would make the United Nations more effective. Anenhanced engagement, it is stated, ‘could help the United Nations do abetter job, further its global goals, becomemore attuned and responsiveto citizens’ concerns and enlist greater public support’.196

In the description of UN–NGO relationships above, it wasmentionedthat there are presently no arrangements for consultation between theGeneral Assembly and NGOs, although NGOs have been advocating forthe establishment of such arrangements. The Panel proposes that theGeneral Assembly ‘should permit the carefully planned participationof actors besides central Governments in its processes’.197 Civil society

194 For Terms of Reference and composition of the Panel, see A/58/817, 11 June 2004,annex I.

195 A/58/817, 11 June 2004. 196 Ibid., p. 8. 197 Ibid., p. 16.


organisations should be included more regularly in the affairs of theAssembly, since it no longer makes sense to restrict their involvementin the intergovernmental process to ECOSOC. In particular, theAssembly should regularly invite contributions to its committees andspecial sessions from those offering high-quality independentinput.198

The ‘Arria consultations’ between NGOs and the Security Councilhave also been described below. According to the Panel, today’s conflictsappear to be more complex than ever, and to address them adequatelydemands on-the-ground knowledge, new tools, new skills in social andcultural analysis, the active involvement of communities and theirleaders, links to vulnerable groups and bridges to mainstream develop-ment processes. Civil society organisations often have unique capacitiesin all those areas, it is claimed. More concretely, Security Councilmembers should further strengthen their dialogue with civil society,for instance by (i) improving the planning and effectiveness of the Arriaformulameetings by lengthening lead times and covering travel costs toincrease the participation of actors from the field, and (ii) ensuring thatCouncil field missions meet regularly with, inter alia, appropriate localcivil society leaders and international humanitarian NGOs.199

It has been mentioned already that the numbers of NGOs participat-ing in UN meetings are very high. It has also been shown how theprocess for considering applications for consultative status withECOSOC can in some cases get politicised. The Panel of EminentPersons states that it appreciates concerns raised by member statesover the number of civil society organisations seeking to take part inUN meetings and that some NGO interventions are offensive. But, thePanel states, ‘using the accreditation process to restrict access of civilsociety organizations either wholesale, by slowing the application pro-cess, or selectively, by arbitrary political judgements, is not a good way

198 Ibid., p. 9. ‘Civil society organisations’ are understood as associations of citizensentered into voluntarily to advance their interests, ideas and ideologies. They arenon-profit and do not belong to the public sector. The term seems to be overlapping,and both wider and narrower than ‘non-governmental organisation’ as used by thePanel, as the latter is understood to include associations of businesses, parliamentar-ians and local authorities. ‘Civil society organisations’, on the other hand, includemass organisations (such as organisations of peasants, women or retired people), tradeunions, professional associations, social movements, indigenous people’sorganisations, religious and spiritual organisations, academe and public benefit NGOs,see A/58/817, p. 13.

199 Ibid., pp. 45–46.


to address such concerns’.200 The Panel believes it is essential to depol-iticise the accreditation process. It is also concerned about the growingphenomenon of accrediting NGOs that are sponsored and controlled bygovernments. The United Nations should realign accreditation with itsoriginal purpose – namely, it should be an agreement between civilsociety actors and member states based on the applicants’ expertise,competence and skills. To achieve this, and to widen the access of civilsociety organisations beyond ECOSOC Council fora, member statesshould agree to merge the current procedures at UN Headquarters forthe Council, the Department of Public Information and conferences andtheir follow-up into a single UN accreditation process. An AccreditationUnit should be established within the General Assembly Secretariat,and a designated General Assembly committee would decide on accredi-tation based on that guidance. The work of the General Assemblycommittee and the Accreditation Unit would be conducted as transpar-ently as possible, and records of the governmental debate would beposted on the UN website.201

The Panel points to problems in the representation of civil society. Itargues that civil society speakers come largely from the North, thatspeakers are largely male, that most civil society organisations haveunclear accountability to the grass roots and that the voices of vulner-able groups are underrepresented. It is recommended that theSecretary-General makes redressing North–South imbalances a priorityin enhancing UN–civil society relations, and that the UN establish afund to enhance the capacity of civil society in developing countries toengage in UN processes and partnerships.202

Finally, it is worth observing that the Panel also takes a wider view onthe importance of a strong civil society for the development of the UnitedNations. The Panel states thatmanyof its proposalswill be fully realisableonly if civil society everywhere is given the chance to flourish and isrespected by domestic governments as interlocutors and partners. ThePanel claims that this would give practical meaning to the freedom ofexpression, association and assembly that is at the heart of the humanrights framework. The priorities identified by the Panel in this areainclude discussing civil society freedoms in UN fora and at the highest-level meetings between the Secretariat and governments, includingthose issues in all programmes of good governance and legal reform

200 Ibid., p. 53. 201 Ibid., pp. 54–55. 202 Ibid., pp. 65–66.


and promoting consultations with non-state actors in any governmentaldeliberative process in which the United Nations is party.203

For the purposes of the present study, it is indeed interesting to notethat the Panel so strongly emphasises the importance of UN–civilsociety relations. It recommends that these contacts be extended toinclude new areas of the United Nations, such as the General Assemblyand the Security Council, deepened to reach the country and locallevels and that selection processes be streamlined and depoliticised.At the heart lie the fundamental freedoms of expression, associationand assembly, which the United Nations should promote and protectthrough its organs and activities. The Chairman of the Panel statesthat the rise of civil society is one of the landmark events of our times,and that the growing participation and influence of non-state actorsis enhancing democracy and reshaping multilateralism: given thisreality, ‘constructively engaging with civil society is a necessity for theUnited Nations, not an option’. At the same time, it should be observedthat it is not proposed to alter the UN’s basic intergovernmental char-acter. Instead, opening up the United Nations to a plurality of constitu-encies and actors is to be regarded as ‘a powerful way to reinvigorate theintergovernmental process itself’.204

7.3 The International Labour Organization

The tripartite structure

The ILO, created in 1919 as part of the Treaty of Versailles, was recog-nised as a specialised agency within the area of labour issues in 1946.205

The ILO is unique among international organisations in its model,which brings together representatives of governments, employers andworkers in the different bodies of the organisation. This model isusually referred to as ‘tripartism’.206 From the perspective of thisstudy, the ILO is in particular interesting as a special model of institu-tionalised state–non-state co-operation. This tripartite organisation is

203 Ibid., p. 69. 204 Ibid., p. 3.205 Freedom of Association and Collective Bargaining, Report of the International Labour

Conference, Geneva: International Labour Office, 1994, p. 5.206 Virginia Leary, ‘The ILO: A Model for Non-State Participation?’, in Theo C. Van Boven

et al. (eds.), The Legitimacy of the United Nations: Towards an Enhanced Legal Status ofNon-State Actors, Netherlands Institute of Human Rights, SIM Special, 19, Utrecht, 1997,p. 61 and Arend Lijphart, Patterns of Democracy: Government Forms and Performance inThirty-Six Countries, New Haven: Yale University Press, 1999, p. 16.


also an active producer of international law in the form of treaties,mainly within the area of labour law, as has been discussed earlier inthis book.207

It was the focus on labour legislation rather than general consider-ations about the participation of civil society which opened the doors ofthe ILO to NGOs from the field of labour. Employers’ and workers’organisations were already often involved in drafting labour legislationon the national plane when the ILO was established as an organisation.Protests against non-state actors as international legislators were moll-ified when it was made clear that the instruments elaborated by the ILOwould not be binding immediately after adoption by the GeneralConference, but only after ratification by the state in question.208

As provided by Article 1(1) of the ILO Constitution, only states can bemembers of the ILO. The permanent organisation consists of a GeneralConference of representatives of the Members, a Governing Body andan International Labour Office controlled by the Governing Body(Article 2). The Conference, which meets annually, elaborates andadopts international labour standards in the form of conventions andrecommendations, and is a general forum for social and labour ques-tions of international importance. The Conference also adopts the bud-get and elects the Governing Body.

According to Article 3 of the Constitution, the meetings of theInternational Labour Conference (or the General Conference) ‘shall becomposed of four representatives of each of theMembers, of whom twoshall be Government delegates and the two others shall be delegatesrepresenting respectively the employers and the workpeople of each oftheMembers’. Non-governmental delegates are nominated by themem-ber states in agreement with the industrial organisations which aremost representative of employers or workpeople in their respectivecountries.209 The primacy of member states in nominating the non-governmental delegates is somewhat restricted by Article 3(9), whichprovides that the Conference ‘may, by two-thirds of the votes cast by thedelegates present, refuse to admit any delegate or adviser whom itdeems not to have been nominated in accordance with this article’.The delegates vote individually on all matters taken into considerationby the Conference.210

207 See sections 4.2, 5.2.208 Leary, ‘The ILO: A Model for Non-State Participation?’, pp. 62–63.209 ILO Constitution, Article 3(5). 210 Ibid., Article 4(1).


The Governing Body is the executive council of the ILO. It takes deci-sions, inter alia, on the policy of the ILO and establishes the programmeand the budget for adoptionby theConference. Article 7 provides that theGoverning Body shall consist of fifty-six persons: twenty-eight represent-ing governments, fourteen representing the employers, and fourteenrepresenting the workers. The employer and worker representatives inthe Conference organise themselves into an Employers’ Group and aWorkers’ Group and (every three years) into Employers’ and Workers’Electoral Colleges, which are responsible for electing the employerand worker members of the ILO Governing Body.211 The Employers’ andWorkers’ Groups of the Governing Body nominate the employers’ andworkers’ representatives on the ILO’s various consultative bodies.

For the purpose of this study, however, it is not only relevant to studythe institutionalised co-operation between IGOs or governments andNGOs, but also what this co-operation means in terms of NGO input inthe development and implementation of international law. One of theobjectives of the ILO is to promote ‘the recognition of the principle offreedom of association’, through the development and promotion of aglobal system of international labour standards. As mentioned in chap-ter 4, the organisation has adoptedmore than 180 conventions coveringa broad range of subjects.

The drafting procedure for conventions demonstrates that the ILOtripartite structure is crucial throughout the drafting process. Topicswhich might result in an international instrument are usually put onthe agenda of the International Labour Conference by the GoverningBody.212 When the Conference meets, it normally appoints a tripartitecommittee to examine proposals for new standards. An importantpart of the work on international standards is carried out by thesetripartite drafting Committees, which are set up under Article 6 of theConference Standing Orders, and which consist of at least three per-sons. The drafting Committees are in general responsible for express-ing in the form of conventions and recommendations the decisionsadopted by the Conference and for ensuring agreement between theEnglish and French versions of the texts of all formal instrumentssubmitted to the Conference for adoption.213 After having discussed

211 Ibid., Article 7(4) and (5) and Articles 49–50, Standing Orders of the InternationalLabour Conference, February 1998.

212 ILO Constitution, Article 14.213 Article 6, Standing Orders of the International Labour Conference, February 1998.


all the aspects of the subject, the tripartite committee adopts its reportand proposed conclusions. The proposed text is then submitted to thefull Conference. If the Conference adopts the report and conclusions ofthe committee, it also decides (if the single-discussion procedure is notused) to place the question on the agenda of the next session of theConference for the second discussion. At the next session of theConference, the provisional text of the proposed Convention and/orRecommendation is examined again by a tripartite Conference com-mittee. The agreed text is then submitted to the full Conference forapproval.

One example of a drafting Committee is the Committee on ChildLabour, which originally consisted of 181 members. The Committeepresented its first report, including conclusions with a view to aConvention, at the Conference in 1998.214 The report with the conclu-sions was adopted by the Conference. The Committee on Child Labourreported a second time to the Conference at its session in 1999 andproposed that a Convention be adopted by the Conference.215 At thesame session, the Conference adopted the Convention concerningthe Prohibition and Immediate Action for the Elimination of theWorst Forms of Child Labour (No. 182), which entered into force inNovember 2000.

The Conference Committee on Application of Standards, set up underArticle 7 of the Standing Orders, is important for determining thescope and precise content of the international obligations which areundertaken by state parties to ILO conventions. Like the other ILOcommittees and bodies, it is tripartite, consisting of a minimum ofthree persons, of whom the chairperson represents a member stateand the other two employers’ and workers’ organisations, respec-tively.216 According to its Terms of Reference, the Committee has toconsider, inter alia, the measures taken by members to give effect to theConventions to which they are parties and the information and reportsconcerning Conventions and Recommendations communicated by

214 International Labour Conference, Report of the Committee on Child Labour, 86th Session,Geneva, June 1998, para. 1 and Proposed Conclusions.

215 International Labour Conference, Report of the Committee on Child Labour (Corr.), 87thSession, Geneva, June 1999.

216 Handbook of Procedures Relating to International Labour Conventions and Recommendations,Geneva: International Labour Office, Rev.2/1998, para. 56; Hector G. Bartolomei de laCruz et al., The International Labour Organization: The International Standards System andBasic Human Rights, Boulder, Co: Westview Press, 1996, p. 81.


Members in accordance with Article 19 of the Constitution.217 As part ofthiswork, the Committee studies individual cases of apparent failure onthe part of states to comply with the conventions ratified by it in aprocedure where the state party in question is asked to submit oral andwritten information to the Committee.218 The initiative to study aspecific case can originate in observations made by the Committee ofExperts or in cases examined by the Committee on Freedom ofAssociation.219 In its annual report to the Conference, the Committeeincludes information on its discussions as to various states’ compliancewith specific obligations, failure to comply with reporting obligations,instances of progress, etc. The Committee points out the most seriouscases of failure to apply ratified Conventions to the Conference and callsits attention to them. The Committee’s reports are usually adopted bythe Conference.220

Virginia Leary has studied the work of ILO, and in particular the workof the Conference Committee on Application of Standards. According toLeary, the most outstanding contribution to its work is made by theworkers who, on the basis of material including official documents aswell as NGO reports, consistently point out serious violations of theConventions. The workers’ members in the Committee, however, findthat it is tooweak a sanction to comment on a state party’s violation of aconvention in a paragraph in the Committee report, but their advocacyof more forceful sanctions has so far been in vain.221

As has been mentioned in chapters 4 and 5, the Committee on Freedom of

Association examines complaints from governments, workers’ and employ-ers’ organisations that member states of the ILO are not respecting basicprinciples of freedom of association.222 The responsibility of theCommittee is essentially to consider, with a view to making a recommen-dation to the Governing Body, whether cases are worthy of examination.Like the other Committees, the Committee on Freedom of Association is atripartite body, although itsmembersparticipate in their personal capacity.

217 Handbook of Procedures Relating to International Labour Conventions and Recommendations,para. 57.

218 Ibid., para. 58(c).219 Cases which have not been dealt with at all by the Committee of Experts may not be

discussed by the Conference Committee on the Application of Standards, Bartolomeide la Cruz et al., The International Labour Organization, p. 82.

220 Handbook of Procedures Relating to International Labour Conventions and Recommendations,para. 58; Bartolomei de la Cruz et al., The International Labour Organization, pp. 82–83.

221 Leary, ‘The ILO: A Model for Non-State Participation?’, pp. 67–69.222 Sections 4.2, 5.2.


Consultative status

In addition to the tripartism that characterises the ILO itself, the organ-isation also has a structure for consultative relationships with NGOs.Article 12 of the ILO Constitution provides that the organisation ‘maymake suitable arrangements for such consultation as it may think desir-able with recognized non-governmental international organizations,including international organizations of employers, workers, agricultur-ists and co-operators’. This provision has resulted in the establishment ofconsultative status for three different categories of international NGOs.The first category includes International NGOs with an Important Interest in aWide Range of the ILO’s Activities that are granted either general or regionalconsultative status. Presently, eight NGOs are in general consultativestatus and eighteen organisations in regional consultative status withthe ILO.223 The second category, the Special List of Non-Governmental

International Organizations, has been set up by the ILO Governing Bodywith a view to establishing working relations with international NGOsother than employers’ and workers’ organisations which share the prin-ciples and objectives of the ILO Constitution and Declaration ofPhiladelphia. There are presently about 150 NGOs in this category spe-cialised in different fields, such as human rights, poverty alleviation,social security, gender issues, etc.224 Thirdly, the ILO Governing Bodyextends invitations to international NGOs which meet certain establishedcriteria to attend ILO meetings in which they have demonstrated aparticular interest. Representatives of NGOs with general and regionalconsultative status are permitted at the sittings of the Conference.International NGOs which have been invited by the Governing Body arealso allowed to be represented at the Conference.225 NGOsmay also, withthe permission of the President, circulate statements for the informationof the Conference on questions which are being considered, with theexceptions of administrative and financial questions.226 NGOs in generalor regional consultative status and organisations which have been

223 ILO website at www.ilo.org/public/english/comp/civil/ngo/ngogen.htm and www.ilo.org/public/english/comp/civil/ngo/ngoreg.htm, 23 August 2004.

224 ILO website at www.ilo.org/public/english/bureau/exrel/civil/ngo/index.htm,23 August 2004.

225 Standing Orders of the International Labour Conference, February 1998, Article 2,para. 3(j).

226 Ibid., Article 14, para. 10.


invited by the Governing Body or by the Conference, may also be presentat the meetings of the Conference Committees.227

7.4 The Council of Europe

The CoE first adopted a resolution on relations with NGOs in 1951. Thisresolution simply stated that: ‘The Committee of Ministers may, onbehalf of the Council of Europe, make suitable arrangements for con-sultation with international non-governmental organisations whichdeal with matters that are within the competence of the Council ofEurope.’228 The relations with NGOs were elaborated through newrules on consultative status in 1976.229 A further basis for the arrange-ments came in 1993 with Resolution (93)38 of the Committee ofMinisters and its appended Revised Rules for Consultative Status.230

Under these arrangements, there was no possibility for national NGOsto enter into formal consultation with the CoE.

In October 2001, following an exchange of views with the Chairman ofthe Liaison Committee of NGOs Enjoying Consultative Status with theCouncil of Europe,231 theMinisters’ Deputies invited their Rapporteur onRelations with NGOs to examine the possibilities of adapting Resolution(93)38 in order that the Council might take greater advantage of itsrelations with NGOs in the pursuit of its aims.232 A mixed workinggroup composed of representatives of the NGOs enjoying consultativestatus and members of the Secretariat was set up with the mandate toprepare a draft legal framework updating Resolution (93)38 and permit-ting the reinforcement of co-operation between the Council of Europeand INGOs.233 Since the 1993 update of the arrangements, relationsbetween the CoE and INGOs had steadily evolved into an active

227 Ibid., Article 56, para. 9.228 Resolution (51) 30 F, Relations with International Organisations, both Intergovernmental and

Non-Governmental, 3 May 1951, para. 4.229 Relations between the Council of Europe and International Non-Governmental Organisations

(Consultative Status), May 1976.230 Committee of Ministers, Resolution (93)38 on Relations between the Council of Europe and

International Non-Governmental Organisations, 18 October 1993.231 The Liaison Committee of NGOs enjoying participatory (formerly consultative) status

was formed in 1976. It is a committee under the responsibility of theNGOs themselves.232 RAP-ONG(2003)6, Report by Mrs Gogoberidze, Rapporteur on Relations between the Council of

Europe and Non-Governmental Organisations, to the 837th Meeting of the Ministers’ Deputies,3 April 2003, para. 2.

233 Ibid., para. 7.


participation of INGOs in relevant CoE bodies and activities. The objec-tive was thus to transform the consultative status into a participatoryone, recognising the practice established in the 1990s. The workinggroup produced a draft resolution on co-operation between the CoE andNGOs. This was transformed by the Secretariat, after several consulta-tions and meetings, into two draft resolutions, one on participatorystatus for INGOs and one on partnership for national NGOs.234 InNovember 2003, the Ministers’ Deputies adopted Resolution (2003)8 onparticipatory status for INGOswith theCoE andResolution (2003)9 on thestatus of partnership between the CoE and national NGOs.235

Interestingly, INGOs were for the first time formerly consulted in theprocess of adoption of a Committee of Ministers resolution in relation toResolutions (2003)8 and (2003)9. The Plenary Conference of INGOs enjoy-ing consultative statuswith theCoE adopted official opinions on the draftresolutions in June 2003 in which it expressed its satisfaction in beingconsulted and its views on the drafts.236

With Resolution (2003)8 the Committee of Ministers wished ‘toreflect the active and constructive role of NGOs, and to clarify, facilitateand intensify the co-operation between the Council of Europe and theINGOs, in particular underlining its participatory character’. In theResolution, it is also stated that it is indispensable that the rules govern-ing the relations between the CoE and NGOs evolve to reflect the activeparticipation of INGOs in the organisation’s policy and work pro-gramme, and to facilitate INGO participation and access to such bodiesas the steering committees and governmental expert committees, andother subsidiary bodies of the Committee ofMinisters.237 It is alsoworthobserving that the new resolution recognises ‘the important role to beplayed by the Liaison Committee as the democratically elected repre-sentative body of all of the INGOs enjoying participatory status with theCouncil of Europe, and by the INGO thematic groupings as their collect-ive voice and, thus, of millions of European citizens, working in each of

234 Ibid., paras. 8–16.235 Committee of Ministers, Resolution Res(2003)8, Participatory Status for International

Non-Governmental Organisations with the Council of Europe and Resolution Res(2003)9,Status of Partnership between the Council of Europe and National Non-GovernmentalOrganisations with the Council of Europe, both adopted on 19 November 2003.

236 The opinions are accessible online at the CoE website at www.coe.int/T/E/NGO/Public/NGO_PC_Opinion_2003_01.asp#TopOfPage and www.coe.int/T/E/NGO/Public/NGO_PC_Opinion_2003_02.asp#TopOfPage, as of 27 September 2004.

237 Committee of Ministers, Resolution Res(2003)8, Participatory Status for InternationalNon-Governmental Organisations with the Council of Europe, 19 November 2003.


the fields represented by them’.238 These collective and representativeNGO structures within the Council of Europe are considered to increasethe efficiency of the co-operation of NGOs within the Council ofEurope.239

The rules for participatory status of INGOs at the Council of Europeare specified in an appendix to Resolution (2003)8. In order to begranted participatory status, INGOs must meet certain conditions.These are that the INGO should:

* be particularly representative in the field(s) of their competence,which should correspond to the Council of Europe’s fields of action,

* be represented at the European level, i.e. havemembers in a significantnumber of countries throughout greater Europe,

* be able, through their work, to support the achievement of the closerunity mentioned in Article 1 of the Council of Europe’s Statute,240

* be capable of contributing to and participating actively in Council ofEurope deliberations and activities, and

* be able to make known the work of the Council of Europe amongEuropean citizens.241

The requirements are basically the same as under the 1993 arrange-ments, but spelled out a little more elaborately. For example, the con-dition of being representative on the European level has been specifiedin the new Resolution as meaning to ‘have members in a significantnumber of countries throughout greater Europe’. Resolution (93)38simply stated that NGOs should be particularly representative at theEuropean level without any further explanation. Clearly, the CoE didnot see any need for conditions regarding established headquarters, ademocratically adopted constitution, etc., as is required under the UNECOSOC arrangements for consultative status.242 Rather surprisingly,

238 Ibid. See also the appendix, paras. 3–5, 7 and 13, 14, 18, which also demonstrates theimportant role of the Liaison Committee and the INGO thematic groupings.

239 RAP-ONG(2003)8, Draft Resolution on Participatory Status for International Non-GovernmentalOrganisations (INGOs) with the Council of Europe and Draft Resolution on the Partnership betweenthe Council of Europe and National Non-Governmental Organisations (NGOs), 14 October 2003,para. 4.

240 Article 1 (a) of the Statute of the Council of Europe establishes that the aimof the CoE isto achieve a greater unity between its members for the purpose of safeguarding andrealising the ideals and principles which are their common heritage and facilitatingtheir economic and social progress.

241 Committee of Ministers, Resolution Res(2003)8, Participatory Status for InternationalNon-Governmental Organisations with the Council of Europe, 19 November 2003, appendix,para. 2.

242 Section 7.2.


the conditions enumerated for participatory status do not even provideexplicitly that the aims and purposes of organisations with consultativestatus shall be in conformity with the purposes and principles of theCoE. On the other hand, NGOs applying for participatory status mustsubmit to the Secretary-General a declaration to the effect that it acceptsthe principles set out in the statute and other basic texts of the CoE,together with the application and other documents, such as its statute.Such a requirement might also be seen as implicitly included in thecondition of being capable of supporting the achievement of a closerunity between the members of the Council. When considering the draftresolution on participatory status, the Parliamentary Assembly statedthat it ‘would like to draw the attention of the Committee of Ministersto the importance of requiring that the NGOs have a democratic struc-ture, decision-making mechanism, as well as a truly non-governmentalsource of funding . . . Furthermore, the Assembly is confident that theCouncil of Europe will not grant participatory status or conclude part-nership agreements with those NGOs whose activities are incompatiblewith the principles of the Council of Europe, in such areas as the fightagainst racism and xenophobia.’243 The Rapporteur on relationsbetween the Council of Europe and NGOs later replied to theAssembly’s comment by stating that ‘it is obvious that only thoseINGOs and NGOs which support the ideals and objectives of theOrganisation can obtain participatory status or conclude partnershipagreements’.244

The decision on granting participatory status is taken by theSecretary-General based on the criteria mentioned in the resolution.In addition, the Secretary-Generalmay take into consideration themainpriorities of the CoE’s programme of activities and the possible prolif-eration of an INGO in a given sector of activity.245 From the explanationsgiven by the Secretary-General over applications for consultative statusunder the 1993 arrangements, it seems that the main reasons for

243 Parliamentary Assembly, Doc 9909, Relations between the Council of Europe andNon-Governmental Organisations, 15 September 2003, para. 17.

244 RAP-ONG(2003)8, Draft Resolution on Participatory Status for International Non-GovernmentalOrganisations (INGOs) with the Council of Europe and Draft Resolution on the Partnership betweenthe Council of Europe and National Non-Governmental Organisations (NGOs), 14 October 2003,para. 4.



granting consultative status to a certain NGO during that period werethat the NGO was ‘useful’ to the CoE in the sense that its programmeswere in keeping with the Council, that it could provide expertise onspecific issues relevant for the CoE and that it could contribute ingeneral to its work.246

The Secretary-General communicates the list of INGOs suggested forparticipatory status to the INGO Liaison Committee for its opinion.After two months, the list is submitted for tacit approval to theCommittee of Ministers, the Parliamentary Assembly and the Congressof Local and Regional Authorities. If no objection has been raised fromthese bodies within three months, the INGOs are added to the list ofthose enjoying participatory status.247 Thus, as is the case with ECOSOCarrangements for consultation with NGOs, it is ultimately the memberstates that decide whether or not a particular NGO should be grantedconsultative status. There are presently 391 INGOs enjoying participa-tory status with the CoE.248 All INGOs that enjoyed consultative statusin accordance with Resolution (93)38 were automatically granted part-icipatory status when the new Resolution was adopted.

Once an INGO has been granted participatory status, it may beinvolved in the steering committees, committees of governmentalexperts and other bodies of the Committee ofMinisters in the definitionof CoE policies, programmes and actions. More concretely, participa-tory status means that INGOs may, inter alia, address memoranda to theSecretary-General for submission to the different committees as well asto the Commissioner for Human Rights, may be invited to provideexpert advice on CoE policies, programmes and actions, shall receivethe agenda and public documents of the Parliamentary Assembly, shallbe invited to public sittings of the Congress of Local and RegionalAuthorities of Europe and shall be invited to attend seminars, confer-ences and colloquies of interest to their work according to the applic-able CoE rules. The committees of the Parliamentary Assembly and of

246 See, e.g., Doc. 8550, Communication of the Secretary General, Implementation ofCommittee of Ministers Resolution (93)38, 29 September 1999.

247 Committee of Ministers, Resolution Res(2003)8, Participatory Status for InternationalNon-Governmental Organisations with the Council of Europe, 19 November 2003, appendix,paras. 13–14. For information on the procedure in cases where an objection is raised,see para. 15.

248 The list is accessible online at the CoE website at www.coe.int/T/E/NGO/public/Participatory_status/List_of_NGOs/liste_des_OING_2004_ internet. asp#TopOfPage, asof 27 September 2004.


the Congress of Local and Regional Authorities of Europe, as well as theCommissioner for Human Rights are encouraged to maintain or inten-sify their co-operation with NGOs.249 In considering the draft resolu-tion, the Assembly noted that:

at present the Assembly committees invite the NGOs to those meetings whichthey consider useful and put their documentation at the disposal of theirmembers when appropriate. Several Assembly activities rely on informationand advice provided by NGOs when organising hearings and seminars, prepar-ing fact-finding visits, election observation and in the preparation of reports. Asin the past, the Assembly and its committees should remain free to determinethe methods used for co-operation with NGOs, while bearing in mind the Rulesof Procedure and any pertinent text adopted on the matter by the Committee ofMinisters. In this connection, it is recalled that according to Rule 44.5 of theAssembly’s Rules of Procedure ‘each committee may develop relations withnon-governmental organisations which carry out activities within the commit-tee’s terms of reference’.250

In order for an INGO to assert influence on the drafting of new treaties,access to the Steering Committees of the Committee of Ministersis important. A right to participation in these Committees does notfollow from the rules for participating status, but is granted on anad hoc basis by the various committees in relation to subjects inwhich NGOs – with or without participating status – have special com-petence. According to the resolution on participatory status, the steer-ing committees, committees of governmental experts and other bodiesof the Committee of Ministers, ‘may’ involve the INGOs enjoying parti-cipatory status in their activities, ‘in particular by granting observerstatus to the Liaison Committee and to the INGO thematic group-ings’.251 This possibility is based on Resolution 76(3) on CommitteeStructures, Terms of Reference and Working Methods, which statesthat any steering committee may, by a unanimous decision, admitobservers from INGOs.252 According to the Rules of Procedure for CoEcommittees which are appended to the Resolution, an observer does nothave a right to vote, but may make oral or written statements on thesubjects under discussion with the permission of the chairperson.

249 Ibid., paras. 5–6.250 Parliamentary Assembly, Doc 9909, Relations between the Council of Europe and

Non-Governmental Organisations, 15 September 2003, para. 14.251 Ibid., para. 4.252 Committee of Ministers, Resolution (76)3 on Committee Structures, Terms of Reference and

Working Methods, 18 February 1976, para. 5.


Proposals made by observers may be put to the vote if sponsored by acommittee member. Committee meetings are held in private.253

Several of the Committees have granted observer status to a number ofNGOs. For example, the Steering Committee for HumanRights has grantedobserver status to Amnesty International, the International Commission ofJurists, the International Federation of Human Rights (FIDH) and theEuropean Co-Ordinating Group of National Institutions for the Promotionand Protection of Human Rights.254 A former member of the SteeringCommitteeofHumanRights cannot recall ameetingwhichhasbeenclosedto observers, who are generally respected for their expertise. At the meet-ings of the Committee, the observers distribute their own documents anddraft provisions (which are sometimes ‘adopted’ by a member state) andmake oral statements practically on an equal footingwith governments.255

INGOs which are granted participatory status also have certain obli-gations. These include, inter alia, that INGOs should:

* furnish, either spontaneously or at the request of the CoE’s differentbodies, information, documents or opinions relating to their ownfield(s) of competence on matters which are under consideration orwhich could be addressed by the CoE,

* work to promote the respect of the CoE standards, conventions andlegal instruments in the member states, and assist in theimplementation of these standards, and this in close contact with local,regional and national NGOs;

* give maximum publicity to the initiatives and achievements of theCoE in their own field(s) of competence and disseminate informationon CoE standards, instruments and activities, and

* submit every four years a report to the Secretary-General specifying,among other things, their participation in the work of the various CoEbodies, their attendance at events organised by the Secretariat General,and any action they have undertakenwith a view to ensuring respect ofCoE standards and to publicising its work.256

253 Ibid., appendix 2, Rules of Procedure for Council of Europe Committees, Articles 9, 5.254 I.A.00 CDDH e, Specific Terms of Reference – Steering Committee for Human Rights (CDDH),

18 December 2002, para. 5 (e). See also, e.g., the list of observers of the EuropeanCommittee on Migration in CM/Del/Dec(2004)877/6.2a/appendix8E, Revised SpecificTerms of Reference – European Committee on Migration, 26 March 2004, para 5i.

255 Interview on 14 February 2001 with Carl Henrik Ehrenkrona, at the time Director forLegal Affairs of the Swedish Ministry for Foreign Affairs and representative of Swedento the Steering Committee on Human Rights.



In other words, INGOs enjoying participatory status with the CoE enterinto a partnership, in which both sides have obligations to the other. Infact, the INGOs’ obligations seem more extensive than the obligationsof the CoE. While organisations enjoying participatory status ‘shall’furnish the CoE with information, documents, reports, etc. INGOs‘may’ be invited to provide expert advice. INGOs ‘shall’ be invited tocertain seminars and conferences, but these are mostly meetings whichare either public or specifically organised for NGOs. On the other hand,several of the obligations undertaken by NGOs are in their own inter-ests, such as furnishing the CoE with information, documents andopinions. The obligation to submit a report every fourth year to theSecretary-General is a relaxation in relation to the former arrange-ments, under which the interval for reports was only two years.

Participatory status can be withdrawn. The Secretary-General maydecide to remove an INGO from the list of organisations enjoying suchstatus if it, in his or her opinion, has failed to complywith its obligationsunder the resolution, is represented twice through, for example, anaffiliate organisation, no longer has activities included in the CoE’swork programme, or ‘has taken any action which is not in keepingwith its status as an INGO’. A review of the list of INGOs with participat-ory status is undertaken periodically. The review is based on the reportsubmitted by the INGOs every four years.257 The INGO LiaisonCommittee shall be consulted by the Secretary-General before the listof INGOs which are proposed to be removed is submitted to theCommittee of Ministers, the Parliamentary Assembly and theCongress of Local and Regional Authorities for tacit approval.258 AnINGO whose application has been refused or which has been removedfrom the list may not submit a new application until two years after thedecision.259

At the time of the adoption of the new arrangements for participatorystatus, the Committee of Ministers also adopted Resolution (2003)9 onstatus of partnership between the CoE and national NGOs, as was men-tioned above.260 Partnership status has the aim of recognising existingco-operation between national NGOs and the CoE in the implementa-tion of concrete activities through the conclusion of partnership

257 Ibid., paras. 16–17. 258 Ibid., paras. 18–19. 259 Ibid., para. 22.260 Committee ofMinisters, ResolutionRes(2003)9, Status of Partnership between the Council of

Europe and National Non-Governmental Organisations with the Council of Europe, 19 November2003.


agreements. The conditions for the conclusion of such an agreementwith a national NGO are that the NGO is (a) particularly representativein the field(s) of its competence, field(s) of action shared by the CoE,(b) able, through its work, to support the achievement of the closerunity mentioned in Article 1 of the Statute of the Council of Europeand (c) able to make known the work of the CoE in its country. NationalNGOs should also be able to contribute, through specific projects,programmes, events or manifestations, to the implementation of CoEprogrammes and public awareness-raising, to ‘strengthening of theEuropean idea’, or capable of providing, through their specific activityor experience, expert advice on the definition of CoE policies,programmes and actions.261 The conditions to be met by nationalNGOs seeking partnership with the CoE are thus rather elaborate.

The modalities for co-operation are more limited as compared tothose for participatory status. Two privileges are enjoyed by nationalNGOs in partnership with the CoE: first, they have the possibility toattend the public sittings of the Parliamentary Assembly and theCongress of Local and Regional Authorities of Europe and, secondly,they have the possibility to attend seminars, conferences and hearingsof interest to their work according to the relevant CoE rules. The obliga-tions undertaken by national NGOs include the regular disseminationof information to their members on the standards, activities andachievements of the CoE in their own field(s) of competence, and thefurnishing, either spontaneously or at the request of the CoE’s differentbodies, of information, documents or opinions relating to their ownfield(s) of competence.262 The Secretary-General keeps the list of NGOswith which the CoE has concluded partnership agreements. The listshall be updated every two years.263

As was mentioned earlier, there was no possibility for national NGOsto obtain consultative status with the Council of Europe under theprevious arrangements for co-operation. The Resolution on partnershipfor national NGOswith the CoE provides that the new rules shall remainin force for an initial period of five years, after which the implementa-tion of the resolution shall be evaluated.264 There is no correspondingprovision in the Resolution on participatory status.

261 Ibid., appendix, paras. 2–3. 262 Ibid., para. 4.263 Committee ofMinisters, Resolution Res(2003)9, Status of Partnership between the Council of

Europe and National Non-Governmental Organisations with the Council of Europe, 19 November2003, appendix, para. 5.

264 Ibid., para. 6.


There are several aspects of the establishment of the new arrange-ments for co-operation between the CoE and NGOs that are worthy ofattention. First, arrangements for consultative status have been substi-tuted for participatory status, a fact which clearly reflects a strongerposition for INGOs, although the forms of co-operation may not beso different in practice. Secondly, a means of establishing formalco-operation with national NGOs has been introduced. Thirdly, NGOshave been involved in the drafting process of both resolutions andalso for the first time formally consulted on draft resolutions by theCommittee of Ministers. Finally, it is worth observing that the elabora-tion of the new arrangements has been paralleled by the drafting andadoption of the Fundamental Principles on the Status of Non-Governmental Organisations in Europe, discussed in chapter 4. TheCoE has thus in several ways since the 1990s recognised the importanceof NGOs on the national as well as the international plane.

7.5 The European Union

In spite of the intense lobbying efforts of NGOs within the EuropeanUnion, the Union has no system-wide regulations for formalisedco-operationwithNGOs. There are, however, two institutionalised advisorybodies – the Economic and Social Committee (ESC) and the Committeeof the Regions (CoR) – which have the function of assisting the Council,the Parliament and the Commission and of serving as channels forexternal contacts. While the CoR serves as a contact point with regionaland local authorities, the ESC represents organised civil society.According to the Nice Treaty, which established the ESC, theCommittee has advisory status and shall consist of ‘representatives ofthe various economic and social components of organised civil society,and in particular representatives of producers, farmers, carriers, work-ers, dealers, craftsmen, professional occupations, consumers and thegeneral interest’.265 In 2001, the Commission concluded protocols onco-operation with the ESC and the CoR, respectively, in order toreinforce their function as intermediaries between EU institutions

265 With the Treaty of Nice, Article 257 in the Treaty establishing the EuropeanCommunity was replaced by the cited text. Treaty of Nice Amending the Treaty onEuropean Union, the Treaties Establishing the European Communities and CertainRelated Acts (2001), Article 2, para. 39.


and organised civil society and the regional and local authorities,respectively.266

The European Council maintains no direct relations with NGOs. TheEuropean Parliament (EP) is open for lobbying, although this possibilityis not limited to NGOs. According to Rule 9(2) of the EP’s Rules ofProcedure with annexed Provisions Governing the Application of Rule 9(2) –

Lobbying in Parliament, passesmay be issued to persons whowish to enterParliament’s premises frequently with a view to supplying informationto members within the framework of their parliamentary mandate.267

In return, such persons shall be asked to respect the code of conduct onLobbying in the Parliament, which is included in the provisionsannexed to Rule 9(2). The code of conduct provides, inter alia, thatpersons who have been given passes for lobbying in the Parliamentshall ‘not claim any formal relationship with Parliament in any dealingswith third parties’ (Article 3.1.d).

According to Article 9 of the Protocol on the application of theprinciples of subsidiarity and proportionality, annexed to the treatyof Amsterdam, ‘the Commission should . . . consult widely before pro-posing legislation and, wherever appropriate, publish consultationdocuments’.268 Although until recently there was no Commission-wide approach on how to undertake consultation with civil society,each of the Commission’s departments had its own mechanisms andmethods for consulting its respective sectoral interest groups.269

Contacts included regular and ad hoc meetings, as well as more for-malised arrangements. Within some areas of the Commission’s workthere is a formal or political commitment to consult an NGO or group-ing of NGOs on a particular issue during the decision-making process.One such area covers the agricultural advisory committees, whichhave existed for some forty years as a formal mechanism for regularand systematic consultation with NGOs and socio-professional

266 COM(2002) 704, Communication from the Commission, Towards a Reinforced Cultureof Consultation and Dialogue – General Principles and Minimum Standards for Consultation ofInterested Parties by the Commission, 11 December 2002, p. 8.

267 Rules of Procedure of the European Parliament,16th edn., July 2004 and annex IX, Provisionsgoverning the application of Rule 9(2) – Lobbying in Parliament.

268 Treaty of Amsterdam Amending the Treaty on European Union, the TreatiesEstablishing the European Communities and Related Acts (1997), Protocol on theapplication of the principles of subsidiarity and proportionality.

269 COM(2002) 704 final, Communication from the Commission, Towards a ReinforcedCulture of Consultation and Dialogue – General Principles and Minimum Standards forConsultation of Interested Parties by the Commission, 11 December 2002, p. 4.


organisations.270 NGOs have also participated in Community delega-tions to international conferences. While this was first done on an ad

hoc basis, it has developed into a practice for the most importantconferences. NGOs are allowed formal expert status within thesedelegations.271

In January 2000, a discussion paper was presented by the Presidentand Vice President of the Commission with the aim of suggestingpossible ways of developing the relationship between the Commissionand NGOs.272 In 2001, the Commission launched a White Paper onEuropean governance and a consultation process which ran untilSpring 2002.273 The proposals for change included the establishmentof minimum standards for consultations on EU policy, the establish-ment of partnership arrangements in selected areas, the publication ofguidelines on collection and use of expert advice and improved dialoguewith non-governmental actors of third countries for the purpose ofdeveloping policy proposals with an international dimension. Civilsociety organisations were mentioned in the White Paper as importantin giving voice to the concerns of citizens.274

After the publication of the White Paper, many organisationsexpressed a desire to submit comments on the basis of an actual draftconsultation framework. In June 2002 the Commission therefore pub-lished the consultation document ‘Proposal for general principles andminimum standards for consultation of interested parties by theCommission’ and invited all interested parties to submit their com-ments.275 During the consultation process, the Commission receivedeighty-eight comments from governments, NGOs, regional and localauthorities, individuals, etc. In December the same year, the

270 The Commission and Non-Governmental Organisations, Discussion paper presented byPresident Prodi and Vice-President Kinnock to the Commission, adopted on 18 January2000, para. 2.1.

271 See further Peter Bombay, ‘The Role of Environmental NGOs in InternationalEnvironmental Conferences and Agreements: Some Important Features’, 10 EuropeanEnvironmental Law Review (2001), p. 230–231. As regards operational co-operationbetween the Commission and NGOs for the purpose of humanitarian activities, seechapter 9.

272 The Commission and Non-Governmental Organisations, Discussion paper presented byPresident Prodi and Vice-President Kinnock to the Commission, adopted on 18 January2000.

273 COM(2001), European Governance: A White Paper, 27 July 2001. 274 Ibid., p. 14.275 COM (2002) 277, Towards a Reinforced Culture of Consultation and Dialogue – Proposal for

General Principles and Minimum Standards for Consultation of Interested Parties by theCommission, 5 June 2002.


Commission adopted the final Communication ‘Towards a reinforcedculture of consultation and dialogue – General principles andminimum standards

for consultation of interested parties by the Commission’, which applied from1 January 2003.276 As a means of strengthening consultation processes,the Commission has also set up the CONECCS (Consultation, theEuropean Commission and Civil Society) database, with the objectiveof providing information on formal consultative committees and otherCommission frameworks through which the civil society organisationsmay be consulted in a formal or structured way.277

Before discussing the contents of the communication, it should benoted that the document is a policy document, which is not legallybinding. This means that a Commission proposal cannot be challengedbefore the ECJ on the ground of alleged lack of consultation of inter-ested parties. The Commission argues in the communication that suchan approach would be ‘over-legalistic’ and ‘incompatible with the needfor timely delivery of policy, and with the expectations of the citizensthat the European Institutions should deliver on substance rather thanconcentrating on procedures’.278

The communication sets up a coherent framework for consultationof different stake-holders, including NGOs, which is to be applied with-out prejudice to more advanced practices for consultation employed byCommission departments. The Commission’s guiding principle for con-sultation is described as ‘to give interested parties a voice, but not avote’. It is emphasised that it is one of the Commission’s duties toconsult, while at the same time it is made clear that ‘first and foremost,the decision-making process in the EU is legitimised by the electedrepresentatives of the European peoples’.279 The specific role of civilsociety organisations is regarded as being a facilitator of a broad policydialogue. It is also placed in the context of the fundamental right ofcitizens to form associations in order to pursue a common purpose, asmentioned in Article 12 of the European Charter of FundamentalRights.280 The term ‘civil society organisation’ is described as an inclu-sive shorthand to refer to a range of organisations, including tradeunions and employers’ federations, organisations representing socialand economic players (such as consumer organisations), NGOs

276 COM(2002) 704, Communication from the Commission, 11 December 2002.277 The database is accessible online at http://europa.eu.int/comm/civil_society/coneccs/

index.htm.278 COM(2002) 704, p. 10. 279 Ibid., pp. 5–6. 280 Ibid., p. 5.


(described as organisations which bring people together in a commoncause, such as environmental organisations, human rights organisa-tions, charitable organisations, etc.), CBOs (community-based organisa-tions – i.e. organisations set up within society at grassroots level whichpursue member-oriented objectives) and religious communities.281

The consultation between the Commission and interested partiesshould, according to the communication, be underpinned by certaingeneral principles, which were identified in the Commission’s WhitePaper on European governance. The principles are participation, open-ness, accountability, effectiveness and coherence. As regards participa-tion, the Commission notes that it is ‘committed to an inclusiveapproach when developing and implementing EU policies, whichmeans consulting as widely as possible on major policy initiatives.This applies, in particular, in the context of legislative proposals.’282

The general principles are said to be applicable to both sides of theconsultation process. In relation to the principle of openness, thismeans that organisations seeking to contribute in consultation pro-cesses are expected to make it apparent which interests they representand how inclusive that representation is.283

Although the general principles are rather elaborately explained, it is theminimum standards that provide the concrete information on how con-sultation is tobe carriedout. Theminimumstandards require the following:

(a) Clear content of the consultation process: certain information shouldbe provided in publicity and consultation documents, including asummary of the context, scope and objectives of consultation, detailsof any hearings, meetings or conferences, where relevant, andreference to related documentation when these are not included.

(b) Consultation target groups: these should include, inter alia, thoseaffected by the policy, those who will be involved in theimplementation of the policy and bodies that have stated objectivesgiving them a direct interest in the policy, but can also be determinedon the basis of ‘specific experience, expertise or technical knowledge,where applicable’, as well as other factors.

(c) Publication: the Commission should ensure adequate awareness-raising publicity and adapt its communication channels to meet theneeds of all target audiences.

(d) Time limits for participation: the Commission should providesufficient time for planning and responses to invitations and writtencontributions; the Commission should strive to allow at least eight

281 Ibid., p. 6. 282 Ibid., pp. 14 ff. (cited sentence on p. 16). 283 Ibid., p. 17.


weeks for reception of responses to written public consultations andtwenty working days notice for meetings.

(e) Acknowledgement and feedback: receipt of contributions should beacknowledged, such as through individual or collective response, andcontributions should be analysed carefully to see whether, and to whatextent, the views expressed can be accommodated in the policyproposals.284

It is interesting that these arrangements for consultation are so differ-ent from those applied within other intergovernmental organisations,such as the CoE. The differences should be seen against the backgroundof the Union’s unique character. On the one hand, the Union hasextensive legislative and regulatory authority, directly affecting citizensin themember countries. This extensive authority can be regarded as anargument for extensive and institutionalised consultation with civilsociety. On the other hand, the channels between populations in themember countries and politically elected representatives within theUnion institutions, notably the EP, is – at least in theory – more directthan in the case of IGOs such as the United Nations or the CoE. It couldtherefore be concluded that different views and concerns of populationgroups should be taken care of by their elected representatives, ratherthan by civil society organisations.

Bearing the special character of the European Union in mind, a fewpoints can be mentioned about the Commission’s guidelines and min-imum standards for consultation. A first, obvious, point is that it issurprising that the guidelines for consultation were issued only in2002, while many other IGOs have had formal arrangements for con-sultation with civil society for decades. Another point is that these firstCommission arrangements for consultation are issued only as non-binding policy guidelines, thus providing no guarantee that consult-ation will actually be carried out in accordance with the document. Yetanother point is that the category of the group to be consulted is widerthan in most other IGOs, where the group to be consulted is oftendefined as NGOs or CSOs meeting certain formal conditions. On theother hand, a basic criterion for consultation is that the group, organi-sation, church, etc. is affected in one way or the other by the proposedpolicy initiative, or that it has specific experience or expertise, which isnot required by many other IGOs. Consequently, the group to be con-sulted is determined on an ad hoc basis, rather than in accordance with

284 Ibid., pp. 19–22.


certain pre-determined criteria. Finally, it can be observed thatthe Commission consultations have the form of separate activitiesperformed in order to consult those affected, while, for example,participatory status within the CoE means more streamlined access tothe ordinary meetings and procedures of the organisation’s differentorgans. With the system for consultation introduced by theCommission, it is up to the Commission itself to decide which partiesare interested and affected, when in the case of, for example, ECOSOCor the CoE, organisations with consultative or participatory statusdetermine which meetings and processes are of interest to them.

7.6 The Organization of American States

General

The Charter of the Organization of American States of 1948 includesseveral provisions which concern NGOs.285 For example, Article 45 (g)provides that the member states recognise the importance of the con-tribution of organisations such as labour unions, co-operatives and cul-tural, professional, business, neighbourhood and communityassociations to the life of the society and to the development process.According to Article 91(d), the Permanent Council shall draft agreementsto promote and facilitate co-operation between the OAS and other‘American agencies of recognized international standing’. These draftagreements shall be submitted to the General Assembly for approval.286

In 1949, the Permanent Council approved the first ‘Standards for theConclusion of Agreements or Special Arrangements between theCouncil and its Organs and Nongovernmental Organizations’.287 TheseStandards were revised several times until the adoption in 1971 of theStandards on Cooperative Relations by the General Assembly.288 Thelatter concerned not only the relations of OAS with NGOs, but also OAS

285 Charter of the Organization of American States, signed in Bogota in 1948, latestamended by the Protocol of Managua in 1993.

286 Another provision which concerns NGOs is Article 112(h), which states that: ‘theGeneral Secretariat shall establish relations of co-operation, in accordance withdecisions reached by the General Assembly or the Councils, with the SpecializedOrganizations as well as other national and international organizations.’

287 OEA/Ser.G, CP/CSC-3/99, Background Information on Civil Society Participation in OASActivities, 26 August 1999.

288 General Assembly, AG/RES. 57 (I-0/71), Standards on Cooperative Relations between theOrganization of American States and the United Nations, Its Specialized Agencies, and otherNational and International Organizations, April 23, 1971.


relations with the United Nations, its specialised agencies and otherinternational and national organisations.

In 1994, the Committee on Juridical and Political Affairs establishedthe Working Group to Study the Possibility of Granting Status toNongovernmental Organizations in the OAS, in response to a requestby the Permanent Mission of Canada. In its note to the PermanentCouncil, the Canadian Mission stated, inter alia, that it believed thatgranting status to NGOs at the OAS would assist the organisation inthe promotion and consolidation of representative democracy in thehemisphere.289 The Working Group found that NGOs already had astatus by the 1971 Resolution on standards on Cooperative Relations,and that these need not be amended.290 Nevertheless, it concluded thatpractical guidelines based on the Standards would be useful in order toensure consistent practices and enhance OAS–NGO relations, includingselection criteria with regard to NGO participation in programmes,projects, and other activities. It also recommended the establishmentof a register of NGOs which had relations with the OAS.291

In June 1999, the General Assembly adopted a resolution establishingthe Committee on Civil Society Participation in OAS Activities within thePermanent Council, and instructed the Permanent Council and itsCommittee to prepare guidelines for civil society participation.292 Theguidelines were adopted by the Permanent Council the same year.293 Inthe guidelines, the term ‘civil society organizations’ (CSOs) is used ratherthan ‘NGOs’, which had been used before the work on establishing theguidelines was initiated. The resolution defines a CSO as ‘any national or

289 OEA/Ser.G, CP/doc.2486/94, Note from the Permanent Mission of Canada on the ‘Study of thePossible Granting of Status to Non-Governmental Organizations, (NGOs) at the OAS’, 2 May 1994.

290 AG/RES. 57 (I-0/71), Standards on Cooperative Relations Between the Organization of AmericanStates and the United Nations, Its Specialized Agencies, and Other National and InternationalOrganizations, April 23, 1971.

291 See further CP/CSC-3/99, Background Information on Civil Society Participation in OASActivities, 26 August 1999 and OEA/Ser.G, CP/Doc.2946/97, Report by the Committee onJuridical and Political Affairs on the Status of Non-Governmental Organizations (NGOs) in the OAS,11 July 1997.

292 XXIX Regular Session of the General Assembly, OEA/Ser.P, AG/RES. 1661 (XXIX-O/99),The Organization of American States and Civil Society, 7 June 1999. The General Assemblyalso adopted another resolution urging member states to establish, or to continue tostrengthen, means of co-operation between governments and civil societyorganisations at the state, provincial, and municipal levels, see XXIX Regular Sessionof theGeneral Assembly. OEA/Ser.P, AG/RES. 1668 (XXIX-O/99), Strengthening Cooperationbetween Governments and Civil Society, 7 June 1999.

293 CP/RES.759 (1217/99), Guidelines for the Participation of Civil Society Organizations in OASActivities, 15 December 1999.


international institution, organization, or entity made up of natural orjuridical persons of a nongovernmental nature’.294 Evidently, ‘CSO’ isunderstood as a wider term that includes NGOs but also organisationswhich are not always regarded as belonging to this category, such asinstitutes and business and professional associations. The term CSO willbe used here in order to avoid confusion in relation to the OAS termin-ology, although ‘NGO’ is understood in the present study as inclusive ofprivate institutes, as well as business and professional organisations.295

Paragraph 4 of the guidelines clarifies the principles governing therelations. It is established, inter alia, that the matters with which NGOsare concerned ‘must fall within the competence of the OAS, and theaims and purposes they pursuemust be consistent with the spirit, aims,and principles established in the Charter of the OAS’. The purpose ofCSO participation in OAS activities is to enable the organs, agencies, orentities of the OAS to benefit from expert advice or specialised informa-tion provided to them by the organisations. It is explicitly stated thatparticipation by NGOs in OAS activities ‘shall not be interpreted as aconcession of negotiating functions – which are the exclusive preserveof the States – and shall not alter the intergovernmental nature of theorgans, agencies, and entities of the OAS’.

Applications from CSOs are examined by the Committee on Inter-American Summits Management and Civil Society Participation in OASActivities, which is a subsidiary body of the Permanent Council. TheCommittee makes a recommendation to the Permanent Council, aftertaking several conditions of eligibility into account. Themost importantof these conditions are the following:

* The organisation shall be of recognised standing within its particularfield of competence and shall be of a representative nature.

* The organisation shall have an institutional structure that includesappropriate mechanisms for holding its officers accountable andsubject to its members.

* The organisation shall obtain its resources primarily from its affiliatesor individual members, and shall have provided a listing of its sourcesof financing and any donations received, including, in particular,those originating from government sources.

* The institutional and financial structure of the organisation istransparent and affords it a degree of independence.296

294 Ibid., appendix, para. 2. 295 See section 1.3.296 CP/RES. 759 (1217/99), appendix, para. 8.


In addition, the Committee takes the geographic origin of the organisa-tion into account in order to ensure a balanced representation of differ-ent regions.297 It follows fromArticle 91(d) of the OAS Charter that CSOswhich co-operate with the OAS shall be ‘American’.298

During the period of the Committee’s examination of applicationsfrom CSOs to participate in OAS activities, the member states maysubmit comments and request information from the organisation inquestion. The final decision is taken by the Permanent Council, whichcomprises one representative for each member state. The PermanentCouncil is under the direct authority of the General Assembly.299 CSOswhich are approved by the Permanent Council for participation in OASactivities are included in a register which is kept by the GeneralSecretariat. By September 2004, ninety CSOs had been accredited forparticipation in OAS activities.300

The privileges of the organisations that have been accepted for parti-cipation include the right to participation in OAS conferences and toattend, as observers, meetings of the Permanent Council and the Inter-American Council for Integral Development (CIDI), and their subsidiarybodies. The rules for participation in the work of the two Councils aredescribed below. As regards participation in OAS conferences, theguidelines prescribe that registered CSOs may attend conferencesafter notifying the Secretariat.301 CSOs which are not registered mayapply to the Secretariat for accreditation. The forms and extent ofparticipation by registered or accepted CSOs in the proceedings of theconferences are governed by the rules of the conference.

By registering for participation with the OAS, CSOs undertake, interalia, to answer inquiries from the organs, agencies and entities of theOAS and provide themwith advisory services upon request, to dissemin-ate information on OAS activities to its members, and to present eachyear to the General Secretariat a report on their participation in OAS

297 Ibid., para. 9.298 See also the introduction to the Guidelines for the Participation of Civil Society Organizations

in OAS Activities, CP/RES.759 (1217/99), 15 December 1999.299 Articles 70 and 80 of the Charter of the Organization of American States.300 Registry of Civil Society Organizations within the Organization of American States,

accessible online at www.civil-society.oas.org.301 The guidelines for CSO participation in OAS conferences are contained in para. 12

of the Guidelines for the Participation of Civil Society Organizations in OAS Activities, CP/RES.759 (1217/99), appendix, 15 December 1999.


activities during that year, their financial situation and sources of fund-ing, and the activities planned for the coming year.302

The registration of an organisation may be suspended or cancelled bythe Permanent Council after recommendation of the Committee onCivil Society Participation. This may occur if an organisation has actedin a manner that is inconsistent with the essential aims and principlesof the OAS, has failed to make a positive or effective contribution to thework of the OAS, has failed to submit reports for two consecutive years,or has furnished manifestly false or inaccurate information.303

In March 2003, the Permanent Council of the OAS approved aResolution on Strategies for Increasing and Strengthening Participation by

Civil Society Organizations in OAS Activities, thereby recognising that theparticipation of civil society in the activities of the OAS should befurther developed within the different political and institutional organsof the organisation.304 The resolution, which was endorsed by theGeneral Assembly, called for a more active promotion of the registra-tion process and participation of civil society organisations. It alsostrengthened the position of CSOs in relation to the GeneralAssembly, as will be described below.305

The General Assembly and the General Secretariat

The Guidelines for the Participation of Civil Society in OAS Activitiesgenerally apply to all ‘organs, agencies and entities’ of the OAS. TheGuidelines are, however, complementary to and do not modify theRules of Procedure of the General Assembly.306 According to theseRules, CSOs may participate in the annual General Assembly as ‘specialguests’.307 The General Secretariat must provide all official documents

302 Ibid., para. 11. 303 Ibid., para. 15.304 CP/RES. 840 (1361/03), Strategies for Increasing and Strengthening Participation by Civil

Society Organizations in OAS Activities, March 26 2003.305 AG/RES. 1915 (XXXIII-O/03), Increasing and Strengthening Civil Society Participation in OAS

Activities, adopted on 10 June 2003. The Permanent Council resolution also asked theSecretariat to review, in a single document, ‘all current provisions of the rules andprocedures of the General Assembly, the Permanent Council, the Inter-AmericanCouncil for Integral Development, the specialized conferences, and other organs andagencies that permit participation by CSOs’. This review is contained in document CP/CISC-106/04, Review of the Rules of Procedure for Civil Society Participation with theOrganization of American States, 31 March 2004.

306 CP/RES.759 (1217/99), Guidelines for the Participation of Civil Society Organizations in OASActivities, appendix, 15 December 1999, paras. 1, 5 b.

307 AG/RES. 1737, Amendments to the Rules of Procedure of the General Assembly, 5 June 2000,appendix, Article 10.


of the General Assembly to the special guests.308 In addition, theResolution on Strategies for Increasing and Strengthening Participationby Civil Society Organizations in OAS Activities has led to a number ofprivileges for CSOs in relation to the General Assembly and the GeneralSecretariat. First, the General Secretariat should hold regular informaldialogue between heads of delegation, the Secretary-General and civilsociety representatives. Second, the General Secretariat shall transmitelectronically, in consultation with the chairs or presidents of the OAS’political organs, to the registered CSOs that so request, the draft resolu-tions presented for consideration by the General Assembly, therebygiving the CSOs the opportunity to comment and make suggestionson the drafts.309 The General Secretariat should also transmit the resolu-tions adopted at each session of the General Assembly to CSOs.310 Third,member states should invite registered civil society organisations toattend as guests and contribute to the agenda and preparation of theGeneral Assembly.311

The OAS Councils

The Councils of the OAS – the Permanent Council and CIDI – may bothpresent drafts of international instruments to the General Assemblyand to the OAS Specialised Conferences. The Councils may also presentstudies and proposals, for example on the convening of specialisedconferences or on the creation, modification, or elimination of specia-lised organisations and other inter-American agencies, as well as on theco-ordination of their activities.312 Both councils are composed of onerepresentative of each member state.313 The functions of the Councilsimply that access to their meetings and other participation in theirwork are important for CSOs seeking to influence the development ofInter-American treaties or other instruments.

As was mentioned above, CSOs that have been accepted for participa-tion have the right to participate as observers in the public meetings ofthe two councils and their subsidiary bodies. CSOsmay also attend closedmeetings upon decision by the chair of the meeting in consultation withthe participatingmember state delegations. The calendar of public meet-ings and the order of business shall be provided toCSOs by the Secretariat

308 Ibid., Article 17.309 CP/RES. 840 (1361/03), Strategies for Increasing and Strengthening Participation by Civil Society

Organizations in OAS Activities, 26 March 2003, Article 1(1)d.310 Ibid., Article 1(1)b. 311 Ibid., 1(3)a. 312 OAS Charter, Article 73.313 Ibid., Articles 71, 80, 93.


‘in a timely manner’. Registered CSOs may give oral presentations at thebeginning of the meetings of committees of the Permanent Council orCIDI, with prior approval from the committee in question.Written docu-ments may be presented on questions that fall within the sphere ofcompetence of the CSO and appear on the agenda of the meeting. Thedocument shall be distributed by the General Secretariat to the memberstates. As regards the Committees of the Permanent Council and CIDI,registered CSOs may distribute documents in advance on the same con-ditions and may give oral presentations at the meetings with priorapproval by the Committee. Furthermore, registered CSOs and othercivil society organisations with special competence in the issue to bediscussed may give oral statements to the meetings of expert groups andworking groups of the Permanent Council or of CIDI.314

The Inter-American Commission on Human Rights

The Guidelines for the Participation of Civil Society in OAS Activities arecomplementary to the Commission’s own Rules, which govern, interalia, the procedure for the examination of individual complaints regard-ing violations of the American Convention on Human Rights.315 As hasalready been described, NGOs often act as petitioners in these cases andsometimes also act as advisers to the Commission if a case is referred tothe Inter-American Court of Human Rights.316

NGOs and other CSOs also provide the Commission with informationfor its work on monitoring the human rights situation in the OASmember states, both on their own initiative and at request of theCommission. In the planning of its on-site visits to the countries, theInter-American Court of Human Rights takes into account, in additionto its own data, information provided by the state, the principal CSOsand individualmembers of civil society, in accordancewith its prioritiesand observation plan. During its on-site investigations the Commissionnormally visits or holds hearings with a number of CSOs.317 For

314 CP/RES. 759 (1217/99), appendix, para. 13.315 Ibid., paras. 1, 5b. The Commission’s competence and procedures for the examination

of such complaints are of course also governed by the American Convention onHuman Rights.

316 Section 5.3. See also OEA/Ser.G, CP/CSC-3/99, Background Information on Civil SocietyParticipation in OAS Activities, 26 August 1999, Chapter VI.

317 Committee on Civil Society Participation in OAS Activities, OEA/Ser.G, CP/CSC-3/99,Background Information on Civil Society Participation in OAS Activities, 26 August 1999,Chapter VI.


example, the Commission carried out an on-site investigation to theDominican Republic in 1997, during which it interviewed a consider-able number of NGOs, women’s groups and trade unions representa-tives, as evidenced by its report.318

The Commission has appointed Special Rapporteurs for differentareas, including the Special Rapporteur on Freedom of Expression andthe Rapporteur on the Rights of the Child. These rapporteurs receiveinformation from NGOs during country visits and otherwise.319

7.7 The African Union

General

The OAU was established in 1963 with the purposes, inter alia, of pro-moting the unity and solidarity of the African states, to co-ordinate andintensify co-operation between the member states, and to defend theirsovereigns, their territorial integrity and independence.320 With theentering into force of the Constitutive Act of the African Union in2002, the OAU and the African Economic Community were transformedinto the African Union (AU).321

The OAU Charter did not include any explicit legal basis for relationswith NGOs. Although the OAU did grant observer status to a few NGOs,NGO co-operation with the principal organs of the OAU seem to havebeen limited.322 Neither does the Constitutive Act on the African Unioncontain any provisions that explicitly mention NGOs or civil society.According to Article 22, however, an Economic, Social and CulturalCouncil (ECOSOCC) is established as an advisory organ composed ofdifferent social and professional groups of the member states.

At its Third Ordinary session in July 2004, the AU General Assemblyapproved the Statutes of the ECOSOCC.323 According to Article 2 of theStatutes, the objectives of the Commission include, inter alia, ‘to forge

318 OEA/Ser.L/V/II.104, Doc. 49 rev. 1, Report on the Situation of Human Rights in the DominicanRepublic, 7 October 1999, paras. 13–15.

319 See, e.g., Report of the Office of the Special Rapporteur for the Freedom of Expression, ChaptersI.B.3 and I.C.2. and Report of the Rapporteur on the Rights of the Child, both included in theAnnual Report of the Inter-American Commission on Human Rights 1998.

320 OAU Charter, Article II(1).321 Constitutive Act of the African Union, 11 July 2000.322 Martin A. Olz, ‘Non-Governmental Organizations in Regional Human Rights Systems’,

28 Columbia Human Rights Law Review (1997), pp. 360–361.323 Assembly/AU/Dec 48 III, Decision on the Economic, Social and Cultural Council (ECOSOCC),

6–8 July 2004.


strong partnerships between governments and all segments of the civilsociety, in particular women, the youth, children, the Diaspora, organ-ized labour, the private sector and professional groups’, to ‘promote theparticipation of African civil society in the implementation of the poli-cies and programmes of the Union’ and to ‘Promote and strengthen theinstitutional, human and operational capacities of the African civilsociety’.324 Articles 3 and 4 on composition and membership statethat ECOSOCC shall be composed of 150 CSOs in member states of theUnion and the African Diaspora, including social groups (such as thoserepresenting women, children, the elderly and those with disabilitiesand special needs), professional groups, NGOs, CBOs, voluntary organi-sations and cultural organisations. Certain requirements must be metby organisations in order to be eligible for membership in ECOSOCC.The organisations should, for example:

* be national, regional, continental or of African Diaspora,* have objectives and principles that are consistent with the principles

and objectives of the Union,* showproof that the ownership andmanagement of the CSO ismade up

of not less than fifty per cent of Africans or of African Diaspora,* have basic resources which are at least fifty per cent derived from

contributions of its members, and any financial or other support orcontribution from a government shall be declared, and

* not discriminate on the basis of religion, gender, tribe, ethnic, racial orpolitical basis.325

The functions of ECOSOCC are rather vaguely formulated. They include,inter alia, to ‘Contribute, through advise, to the effective translation ofthe objectives, principles and policies of the Union into concrete pro-grammes, carry out studies, and to contribute to the promotion ofpopularisation, popular participation, and to the realisation of thevision and objectives of the Union.’326

The AUhas thus established an advisory organwith broad civil societyrepresentation. Its mandate is wide but at the same time vague, andsince ECOSOCC is an advisory body it is impossible to foresee what itsactual position in the AU will be.

324 Experts/PRC/ECOSOCC Statutes/Rev.5, Statutes of the Economic, Social and Cultural Councilof the African Union.

325 Ibid., Article 6. 326 Ibid., Article 7.


The African Commission on Human and Peoples’ Rights

It is often pointed out that the African Commission has a close relation-ship with NGOs.327 Some components of this relationship have beendescribed earlier in this book.328 There are, however, also several arti-cles in the African Charter on Human and Peoples’ Rights and theCommission’s Rules of Procedure which concern the status of NGOswithin the OAU bodies.

Article 45(1a) of the Banjul Charter declares that one of the functionsof the Commission is to encourage national and local institutions con-cerned with human and peoples’ rights. Article 45(1c) provides that theCommission should co-operate with other African and internationalinstitutions concerned with human rights. Chapter XIII of theCommission’s Rules of Procedure deals with relations of the AfricanCommission with NGOs and the representation of these organisa-tions.329 The formal relationship between the Commission and NGOshas the form of observer status, which can be granted to NGOs afterapplication to the Commission under Rule 75. At its 25th ordinarysession in 1999, the Commission adopted new criteria for the grantingand enjoying of observer status.330 The Resolution formulates threecriteria for observer status:

* that the organisation’s objectives and activities are in consonance withthe fundamental principles and objectives enunciated in the OAUCharter and in the African Charter on Human and Peoples’ Rights,

* that the organisation works within the field of human rights, and* that the organisation declares its financial resources.331

327 Rachel Murray, The African Commission on Human and Peoples’ Rights & International Law,Oxford: Hart Publishing, 2000, p. 88; Evelyn A. Ankumah, The African Commission onHuman and Peoples’ Rights: Practices and Procedures, The Hague: Martinus Nijhoff, 1996,p. 47; Claude Welch, Protecting Human Rights in Africa: Strategies and Roles ofNon-Governmental Organizations, Philadelphia: University of Pennsylvania Press, 1995,pp. 163–169; Chidi Anselm Odinkalu and Camilla Christensen, ‘The AfricanCommission on Human and Peoples’ Rights: The Development of its Non-StateCommunication Procedures’, 20 HRQ (1998), p. 236; U. Oji Umozurike, The AfricanCharter on Human and Peoples’ Rights, The Hague: Martinus Nijhoff, 1997, p. 71.

328 Sections 5.3, 6.8.329 Rules of Procedure of the African Commission on Human and Peoples’ Rights, Adopted on

6 October 1995.330 Resolution on the Criteria for Granting and Enjoying Observer Status to Non-Governmental

Organisations Working in the Field of Human Rights with the African Commission on Human andPeoples’ Rights, adopted at the 25th Ordinary Session, held on 26 April–5 May 1999.

331 Ibid., Annex – Criteria for the Granting of and Maintaining Observer Status with the AfricanCommission on Human and Peoples’ Rights, Chapter I, para. 2.


To apply for observer status, an NGO needs to provide its statutes, proofof its legal existence, a list of its members, documentation on its con-stituent organs and its sources of funding, its last financial statementand a statement on its activities.332 It can be observed that there is norequirement that the NGO should be based in a member state of theOAU. As of May 2003, there were 300 African and international organ-isations in observer status with the Commission.333

The privileges of NGO observers include access to the opening andclosingmeetings of all sessions of the Commission and access to all non-confidential documents which are of relevance to their interests.Observers may also be invited to closed sessions dealing with issues ofparticular interest to them. As regards oral statements, observers maybe authorised to speak on issues of concern to them, provided that thetext of the statement has been provided beforehand to the Chairman.Observers may also be given the floor to respond to questions from thecommissioners. NGO observers may request that issues of particularinterest to them be included in the provisional agenda. There is noprovision governing the distribution of written statements.334

There are two obligations upon NGOs with observer status in theCommission. First, NGO observers shall ‘undertake to establish closerelations of co-operation with the African Commission and to engage inall regular consultations with it on all matters of common interest’.Secondly, they shall present their activity reports to the Commissionevery two years. Observers who do not comply with their obligationsmay be denied some of their privileges or have their observers statussuspended or withdrawn.335

The participation of NGO observers as regulated in the criteria forobserver status reflects only the most recent part of a long history ofextensive co-operation between the Commission and NGOs. In fact, theGeneva-based NGO the International Commission of Jurists had animportant role in the drafting and adoption of the Banjul Charter. The

332 Ibid., Chapter I, para. 3(b).333 Sixteenth Annual Activity Report of the African Commission on Human and Peoples’ Rights

2002–2003, p. 16. The Directory of NGOs with observer status is accessible online at theCommission’s website at www.achpr.org/english/_info/directory_ngo_en.html, as of30 September 2004.

334 Resolution on the Criteria for Granting and Enjoying Observer Status to Non-GovernmentalOrganisations Working in the Field of Human Rights with the African Commission on Human andPeoples’ Rights, adopted at the 25th Ordinary Session, held on 26 April–5 May 1999,annex, Chapter II, paras. 1–6.

335 Ibid., Chapter III, paras. 1–2, Chapter IV, paras. 2–3.


International Commission of Jurists started its work towards the elabor-ation of the African Charter onHuman and People’s Rights in 1961, whenit organised the Lagos Conference, which assembled 194 participantsfrom different African countries and expressed a call to African govern-ments to study the possibilities of adopting an African convention ofhuman rights and of creating an African court.336 In 1977, theInternational Commission of Jurists convened a colloquium in Dakar.The reports from thesemeeting werewidely distributed and used by theUnited Nations in its later meetings in Cairo and Monrovia devoted todiscussing a draft African human rights treaty. Inwhat the InternationalCommission of Jurists called the ‘decisive step’, it convened a newmeet-ing with lawyers in Dakar in 1978. Four of the participants in thesemeetings lobbied ten heads of state to support an African human rightstreaty.337 Judge Keba Mbaye from Senegal, at the time the President ofthe International Commission of Jurists and concurrently chairman ofthe UN Commission on Human Rights, persuaded the SenegalesePresident to introduce a resolution to the OAU calling upon the organi-sation to convene African experts to draft a human rights treaty. In1981, the experts had finished a draft strongly influenced by Mbaye,who served as the Rapporteur of the drafting committee.338

The African Charter was adopted at the OAU Summit in 1981. TheInternational Commission of Jurists then embarked on a continent-wide campaign for its ratification in collaboration with African NGOs,such as the Council for the Development of Economic and SocialResearch in Africa (CODESRIA), the Union of African Lawyers and theAfrican Bar Association.339 The first part of the campaign, whichincluded a seminar in Dakar in 1983, was targeted at persons andinstitutions that could influence decision-makers in the different gov-ernments. A second seminar was arranged in 1985 with the aim of

336 Shadrack B.O. Gutto, ICJ Workshops on NGO Participation in the African Commission onHuman and Peoples’ Rights 1991 to 1996: A Critical Evaluation, Geneva: InternationalCommission of Jurists, pp. 7, 21–24. See also Howard B. Tolley, Jr., who describes theInternational Commission of Jurists as the ‘midwife’ of the African Charter, TheInternational Commission of Jurists, Philadelphia: University of Pennsylvania Press, 1994,pp. 178–181.

337 Welch, Protecting Human Rights in Africa, p. 165; Ankumah, The African Commission onHuman and Peoples’ Rights, p. 4; ICJ Report on Activities 1986–1988, Geneva, 1989, p. 3.

338 Welch, Protecting Human Rights in Africa, p. 165; Tolley, The International Commission ofJurists, p. 179.

339 Gutto, ICJ Workshops on NGO Participation in the African Commission on Human and Peoples’Rights 1991 to 1996, pp. 26–27.


securing the additional eleven ratifications needed for the Charter toenter into force. This seminar brought together leading jurists fromcountries which had not yet ratified the African Charter. During theannual summit of the OAU heads of State in 1984, fourteen statesratified the Charter, which meant that the required number of ratifica-tions for the Charter to enter into force had been met.340

The ICJ also assembled eleven jurists in June 1987 to work on theprocedures to implement the Charter. Six of these jurists were sub-sequently elected to the African Commission. All but two of the recom-mendations made by the International Commission of Jurists wereadopted as the Commission’s rules of procedure.341

After the establishment of the African Commission on Human andPeoples’ Rights in 1987, the International Commission of Jurists turnedits attention to the implementation of the Charter’s provisions. One ofthe models used for contributing to the strengthening of the Africanhuman rights mechanism was the NGO workshops organised by theInternational Commission of Jurists in collaboration with other NGOsprior to the Commission’s ordinary sessions from the early 1990s. Theseworkshops often adopted resolutions and recommendations which werepresented to the Commission during its session. The Commission hasadopted without major alterations a number of such resolutions sub-mitted to it by NGOs.342 Examples of such resolutions include:

* Resolution on the Military: The 7th NGO Workshop in October 1994adopted a resolution on the military, which recognised that militarytake-overs contravene Articles 13 and 20 of the African Charter andcalled upon incumbentmilitary governments to return political powerto freely elected governments immediately.343 During its subsequent16th Ordinary Session, the African Commission adopted a Resolutionon the Military with the same content.344

* Contemporary Forms of Slavery: The sameNGOWorkshop in October 1994adopted a resolution on contemporary forms of slavery in Africa. TheWorkshop recommended the African Commission to contact all

340 Welch, Protecting Human Rights in Africa, p. 166 and Gutto, ICJ Workshops on NGOParticipation in the African Commission on Human and Peoples’ Rights 1991 to 1996, pp. 26–27.

341 Welch, Protecting Human Rights in Africa, p. 166.342 Ankumah, The African Commission on Human and Peoples’ Rights, p. 26.343 Seventh Workshop, 23–24 October 1994, in The Participation of Non-Governmental

Organizations in the Work of the African Commission on Human and Peoples’ Rights: ACompilation of Basic Documents, October 1991–March 1996, p. 52.

344 Resolution on the Military, adopted at the 16th Ordinary Session of the AfricanCommission (1994).


member states of the OAU and urge them to ratify and implement allexisting international instruments relating to slavery.345 During itssubsequent Ordinary Session, the Commission adopted a similarResolution on Contemporary Forms of Slavery.346

* Resolutions on specific countries: The sameNGOWorkshop inOctober 1994adopted resolutions regarding the situation in Algeria, the Gambia,Nigeria and Rwanda.347 The Commission adopted resolutions on thesecountries during its session.348 The content of the resolutions of theAfrican Commission and the resolutions adopted by the NGOWorkshops are in large parts the same.349

The Commission’s Annual Activity Reports often contain descriptions ofextensive co-operation with different governmental and non-govern-mental organisations.350

7.8 Conclusions

This chapter has described some examples of arrangements for formalco-operation between IGOs and NGOs. Other IGOs that undertake for-malised co-operation with NGOs are, for example, the United NationsEnvironment Programme (UNEP), FAO and UNESCO. It is, of course, alsointeresting to identify IGOs that have no system for formal consultationwith NGOs. In this group we find, for instance, the IMF and the WTO.Several organisations have no system for formal consultation withNGOs integrated into their own decision-making structures, but main-tain dialogue with civil society through special civil society meetings oradvisory groups – e.g. the World Bank and the United NationsDevelopment Programme (UNDP). Still others, such as UNHCR and the

345 Seventh Workshop, 23–24 October 1994, in The Participation of Non-GovernmentalOrganizations in the Work of the African Commission on Human and Peoples’ Rights: ACompilation of Basic Documents, p. 51.

346 Resolution on Contemporary Forms of Slavery, adopted at the 16th Ordinary Session of theACHPR (1994).

347 Seventh Workshop, 23–24 October 1994, in The Participation of Non-GovernmentalOrganizations in the Work of the African Commission on Human and Peoples’ Rights: ACompilation of Basic Documents, p. 50.

348 16th Ordinary Session of the African Commission on Human and Peoples’ Rights,25 October–3 November 1994, Final Communique, para. 46.

349 Resolution on Algeria, Resolution on the Gambia, Resolution on Nigeria and Resolution on Rwanda,adopted at the 16th Ordinary Session of the African Commission (1994).

350 See, e.g., Thirteenth Annual Activity Report of the African Commission on Human and Peoples’Rights 1999–2000, paras. 45–48, 56–69 and Sixteenth Annual Activity Report of the AfricanCommission on Human and Peoples’ Rights 2002–2003, pp. 10–11, 13, 34.


Organization for Security and Co-operation in Europe (OSCE) haveextensive co-operation with NGOs on the operational level but little ornone within central decision-making structures.351

Some general points can bemade regarding the arrangements studiedabove. One interesting fact is that, since the late 1990s, there has been aclear trend towards enhanced co-operation between IGOs and NGOs, orcivil society in general. Indications of this include the adoption of thefirst guidelines for consultation with civil society by the EuropeanCommission in 2003 (although these guidelines have the form of anon-binding policy document), the adoption of the first coherentarrangements for co-operation with NGOs within the OAS in 1999 andthe transformation within the CoE in 2003 from a system for consult-ation with INGOs to a system for participation of INGOs and for partner-ship with national NGOs. It can also be noted that the AU hasestablished ECOSOCC, an advisory body consisting of representativesof civil society organisations.

Another interesting indication of a development towards a strongerposition for NGOs within IGOs is that the use of the term ‘participation’seems to becoming more frequent, at the expense of ‘consultation’. Theformer concept has been introduced within the CoE and the OAS while,for example, ECOSOC and the ILO still use ‘consultation’. It can also beobserved that some IGOs have gone from describing their civil societypartners as ‘NGOs’ to calling them ‘CSOs’, the latter term being under-stood as broader and inclusive of NGOs as well as, for example, acade-mic institutes, religious organisations and indigenous organisations.

Finally, the Report of the Panel of Eminent Persons on Civil Societyand UN Relationships should be recalled. Although the Report has notyet led to any actual reforms within the United Nations, it is noteworthythat the Panel recommends a stronger relationship between the UnitedNations and civil society and enhanced co-operation between NGOs andcentral UN fora, such as the General Assembly and the Security Council.

351 For examples of co-operation between IGOs and NGOs, see section 9.3.


8 Participation in internationalconferences

8.1 Introduction

One of the most obvious examples of increasing contacts betweenNGOs and IGOs during the 1990s was the participation of NGOs ininternational conferences. The rules which provide NGOs with thepossibility to participate in such meetings probably provide the mostimportant formal platform for NGOs which seek to influence interna-tional law-making. While rules which give NGOs standing as victims,complainants or amici curiae before international courts and quasi-judicial bodies are essential avenues for influencing the interpretationand development of already existing law, many international confer-ences create new law. The participation of NGOs in the conferenceswhich adopted the Landmines Convention, the Statute of theInternational Court and, to some extent, environmental treaties suchas the Framework Convention for Climate Change, therefore in a senseprovide more direct examples of how NGOs influence law-making.1

1 The influence of NGOs on the Convention on the Prohibition of the Use, Stockpiling,Production and Transfer of Antipersonnel Mines and on their Destruction has beendescribed in detail elsewhere, see Maxwell A. Cameron et al. (eds.), To Walk Without Fear:The Global Movement to Ban Landmines, Oxford University Press, 1998; Louis Maresca andStuart Maslen (eds.), The Banning of Anti-Personnel Landmines: The Legal Contribution of theInternational Committee of the Red Cross 1955–1999, Cambridge University Press, 2000; andKenneth Anderson, ‘The Ottawa Convention Banning Landmines, the Role ofInternational Non-Governmental Organizations and the Idea of International CivilSociety’, 11 EJIL (2000), pp. 91–120. The influence of NGOs on environmental treaties isanalysed in Bas Arts, The Political Influence of Global NGOs: Case Studies on the BiodiversityConventions, Utrecht: International Books, 1998. Regrading the role of NGOs in thenegotiations of the UN Convention on the Law of the Sea, the Ottawa Convention andthe Multilateral Agreement on Investment, see John King Gamble and Charlotte Ku,‘International Law – New Actors and New Technologies: Center Stage for NGOs?’, 31 Law

446

This chapter includes a description of the rules for and actual partici-pation of NGOs in a few selected UN conferences. The limitation to UNconferences is mainly due to the universal character of these confer-ences, but also to the practical aspect of availability of documents and tothe need for limitations. Among many possible UN conferences, I havedecided to focus on the United Nations Rio Conference on Environmentand Development UNCED, (1992), the World Conference on HumanRights (1993), the Third Session of the Conference of the Parties to theFramework Convention on Climate Change (FCCC, which adopted theKyoto Protocol) (1997) and the Rome Conference for an InternationalCriminal Court (1998). This selection includes both directly law-makingconferences and conferences which have been important for the devel-opment of international law, although they did not adopt new treaties,and it covers different fields, such as environmental law, human rightslaw and humanitarian law. The conferences also represent differentlegal frameworks for the participation of NGOs, as the Rio Conferenceand the Conference on Human Rights both took place before the adop-tion in 1996 by ECOSOC of general rules for NGO participation in UNconferences, while the Rome Conference for an International CriminalCourt occurred after the adoption of these rules. The Third Session ofthe Conference of the Parties to the FCCC took place after the adoptionof the ECOSOC Resolution but followed its own rules for NGO participa-tion on the basis of provisions in the Convention itself.

One of the examples – the Rome Conference for an InternationalCriminal Court – includes not only a description of the rules and actualparticipation of NGOs in the proceedings, but also an evaluation of theinfluence which NGOs asserted on the negotiations in the view of fivepersons who were in key positions during the conference. This investi-gation is also an attempt to examine the practical significance of differ-ent rules formulating modalities for NGO participation. It should beobserved that it is a difficult task to assess the influence of differentactors and other factors on the outcome of international negotiations,and it is indeed not a task for which lawyers are trained, but rathersomething for sociologists or scholars of international relations.2 Thestudy of the Rome negotiations is therefore more of a qualitative thanquantitative nature; it focuses on the developments as they were

and Policy in International Business (2000), pp. 246–258. The influence of NGOs on theadoption of the Statute of the ICC is analysed in section 8.6.

2 This is demonstrated by the complexity and thoroughness of Arts’ study of the influenceof NGOs on the climate change negotiations, see Arts, The Political Influence of Global NGOs.

PART IC I PAT ION IN INTERNAT IONAL CONFERENCES 447

experienced by a few people involved in the negotiations and shouldnot be understood as an assertion of objective facts.

The fact that all the events described are examples of strong NGOparticipation in international conferences does not mean that NGOsalways participate. As descriptions of the increasing participation ofNGOs on the international scene often focus on a few examples, thereis a risk that a false impression may be created. Even though NGOs havehad an impact on the negotiations during some important law-makingconferences, it can be assumed that the more concrete or politicallysensitive the issue, the less likely it will be that NGOs are granted anyreal access to the negotiations, at least if the conference in question is notconvened by the United Nations.3 The Conference on Disarmament pro-vides an illustration of this. The Rules of Procedure of the Conferenceincludes rules for participation of non-member states as observers andfor UN organs to provide information to the Conference, but do notprovide a basis for participation of IGO or NGO observers. The only ruleon NGOs states that all communications from NGOs shall be retainedby the Secretariat and made available to delegations upon request, andthat a list of all communications shall be circulated to the Conference.4

8.2 Rules for NGO participation in UN conferences

Before 1996, the rules for NGO participation in conferences hosted bythe United Nations were determined on a case-by-case basis by the organconvening the conference.5 With the adoption in 1996 of the ECOSOCResolution on revised arrangements for consultative relationshipsbetween the United Nations and NGOs, a set of generally applicableprovisions for the participation of NGOs in UN conferences becameoperational.6 The first of these provisions states that if an NGO has

3 In 1996, the United Nations adopted general rules for NGO participation in conferencesconvened by it, see section 8.2.

4 CD/8/Rev.9, 19 December 2003, Rules of Procedure of the Conference on Disarmament, Rules IX,XI, XII. Earlier reports of the Conference demonstrated that NGOs were not invited, withthe exception of a few special occasions. See, however, the decision on NGO participationtaken by the Conference in 2004, CD/1744, 7 September 2004, paras. 18–20.

5 E/AC.70/1994/5, General Review of Arrangements for Consultations with Non-GovernmentalOrganizations, 26 May 1994, para. 100.

6 E/RES/1996/31, Consultative Relationship between the United Nations and Non-GovernmentalOrganizations, 25 July 1996, Part VII, Participation of non-governmental organizations ininternational conferences convened by the United Nations and their preparatoryprocess.


been invited to participate in a conference convened by the UnitedNations, it is the prerogative of member states to decide on its accred-itation through the respective preparatory committee. Accreditationshall, according to the provision, be preceded by an appropriate processto determine the eligibility of the NGO.7

NGOs in general consultative status, special consultative status andon the Roster that sowish shall as a rule be accredited.8 OtherNGOsmayapply to the Secretariat for accreditation. Such an application should beaccompanied by detailed information, including:

* the competence of the organisation and the relevance of its activitiesto the work of the conference and its preparatory process

* the purpose of the NGO, its programmes and activities which arerelevant to the conference and its preparatory process and the countryor countries in which they are carried out

* copies of the annual or other reports with financial statements, and alist of financial sources and contributions, including governmentalcontributions

* a list of members of the governing body of the NGO and their countriesof nationality

* a description of the membership of the organisation, indicating thetotal number of members, the names of organisations that aremembers and their geographical distribution

* a copy of the constitution and/or by-laws of the organisation.9

The applying NGOs shall also be asked to confirm their interest in thegoals and objectives of the conference.10 In the evaluation of applica-tions, determination shall be made on the basis of the background andinvolvement of the NGO in the subject areas of the conference. Memberstates may submit comments on any of the applications. If theSecretariat finds that the applying NGO has demonstrated its compe-tence and the relevance of its activities to the work of the preparatorycommittee, it recommends accreditation to the committee, which deci-des on the matter. An organisation which has been accredited to attenda session of the preparatory committee and related preparatory meet-ings of regional commissions may attend all its future sessions, as wellas the conference itself.11

The status of NGOs which have been accredited to an internationalconference is of an observatory character. It is made clear in the

7 Ibid., para. 41. 8 Ibid., para. 42. 9 Ibid., paras. 42–44. 10 Ibid., para. 44(b).11 Ibid., paras. 45–47, 49.


resolution that the nature of conferences convened by the UnitedNations and the preparatory processes for such conferences is inter-governmental, and that active participation of NGOs is welcome butdoes not entail a negotiating role.12 Privileges of accredited organisa-tions include that they may be given the opportunity to address thepreparatory committee and the conference in plenary meetings andtheir subsidiary bodies, at the discretion of the chairperson and withthe consent of the body concerned, and the right to make writtenpresentations during the preparatory process.13 Accreditation may besuspended or withdrawn on the same conditions as consultative status.14

8.3 The United Nations Conference on Environmentand Development

The participation of NGOs in UNCED (or the Rio Conference) in Rio deJaneiro in 1992 and its preparatory process was, in the words of the UNSecretary-General, ‘unprecedented’.15 At the same time, it has beenasserted that the rules for accreditation of NGOs to UNCED becameadopted only after a ‘fierce political battle’.16 The final outcome, how-ever, with some 2,400 accredited representatives of around 650 NGOsattending the conference, seems to have been an important factor in theprocess towards the adoption of new consultative arrangements in1996, including general rules for participation of NGOs with or withoutconsultative status in UN conferences.17 Interestingly, it was anotherenvironmental conference – the UN Conference on the HumanEnvironment in 1972 – which had marked the first step in a develop-ment towards increased NGO participation in UN conferences; thenumber of around 250 registered NGOs was at that time the highest at

12 Ibid., para. 50. 13 Ibid., paras. 51–52. 14 Ibid., paras. 55–59. See also sections 4.3, 7.2.15 E/AC.70/1994/5, General Review of Arrangements for Consultations with Non-Governmental

Organizations, Report of the Secretary-General, 26 May 1994, para. 101.16 UN Briefing Papers, The World Conferences: Developing Priorities for the 21st Century, The

United Nations, 1997, p. 20; Peter Willetts, ‘From Stockholm to Rio and Beyond: TheImpact of the Environmental Movement on the United Nations ConsultativeArrangements for NGOs’, 22 Review of International Studies (1996), p. 57.

17 The United Nations, 1997, p. 20; Willetts, ‘From Stockholm to Rio’, p. 57. The ‘hybridNGO’, the International Union for the Conservation of Nature (IUCN), which comprisesstates, government agencies and NGOs, also played a very important role in the Rioprocess, see Sally Morphet, ‘NGOs and the Environment’, in Peter Willetts (ed.), ‘TheConscience of the World’: The Influence of Non-Governmental Organisations in the UN System,London: Hurst & Co., 1996, pp. 134–140.


any conference in the history of the United Nations and it probablycontinued to be the record until the Rio Conference.18

In terms of international instruments, UNCED produced the RioDeclaration on Environment and Development, the AuthoritativeStatement on Forest Principles and Agenda 21, which is an action planon sustainable development. The Conference also established the UNCommission on Sustainable Development to monitor the implementa-tion of Agenda 21. No legally binding instruments were adopted by theConference, but many participating states signed the FCCC, which wasopened for signature in Rio.19

In the resolution by which the General Assembly decided to convenethe Conference, the Assembly requested ‘relevant’ NGOs in consultativestatus with ECOSOC ‘to contribute to the Conference, as appropriate’.20

There were thus initially no plans for NGOs which were not in consulta-tive status to be invited to apply for accreditation, and among NGOs withconsultative status only those ‘relevant’ were to be admitted. As regardsthe Preparatory Committee (PrepCom), the General Assembly decidedthat it was to be open to the ‘participation of observers in accordancewith the established practice of the General Assembly’.21 The lack ofreference to NGOs seemed to indicate that these organisations were notto be allowed to participate in the preparatory process at all.Nevertheless, eleven international NGOs attended the organisationalsession of the PrepCom three months later.22 At the first substantivesession, the PrepCom adopted rules for NGO participation which werethen extended for the following meetings. These rules could be adoptedonly after a long debate, during which some delegates held that the ruleswould have to be referred back to the General Assembly for approval ifthey allowed for accreditation of NGOs without consultative status.23

18 Willetts, ‘From Stockholm to Rio’, pp. 69–70; Morphet, ‘NGOs and the Environment’,p. 124.

19 A/CONF.151/26 (vol. I), Report of the United Nations Conference on Environment andDevelopment, 12 August 1992, Chapter 1, Resolution 1 (Adoption of texts).

20 A/RES/44/228, United Nations Conference on Environment and Development, 22 December1989, Part II, para. 12.

21 Ibid., Part II, para. 1.22 A/44/48, Report of the Preparatory Committee, 14 January 1991, para. 11. The Committee did

not agree on rules for the participation of NGOs in the preparatory process at thissession, but decided that the Secretariat should submit a proposal to the Committee atits first substantive session; ibid., Decision IV, pp. 13–14.

23 Willetts, ‘From Stockholm to Rio’, pp. 73–74. It is interesting to note that both NGOswith and without consultative status with ECOSOC were accredited to the Stockholm


Nevertheless, the decision finally taken by the PrepCom allowed forparticipation of NGOs in consultative status with ECOSOC, as well as ofother NGOs ‘desiring to be accredited’. Applications for accreditation ofNGOs lacking consultative status had to be accompanied by informationon the NGOs’ competence and relevance to the work of the PrepCom. AllNGOs which had been granted accreditation to one of the sessions of thePrepCom could also attend its future sessions.24

The actual participation of NGOs in the preparatory process wasstrong; over 160 NGOs were represented at the second session of thePrepCom (PrepCom II) and 350 NGOs participated in PrepCom III.25

Some NGOs participated in national preparatory committees andmade contributions to the preparation of national reports to theconference. The NGOs also arranged a preparatory conference in Paris1991 with over 800 participating NGO representatives.26

All NGOs which were accredited to participate in the work of thePrepCom by the conclusion of its fourth session were accredited to theRio Conference;27 172 governments were represented at the conferenceand some 2,400 representatives of around 650 accredited NGOsattended it.28 It has been asserted that during the whole preparatory

Conference in 1972 and that the rules of procedure allowed NGOs to speak at openplenary and committee sessions, Morphet, ‘NGOs and the Environment’, p. 124.

24 PrepCom decision 2/1 on Procedure for determining non-governmental organizations’competence and relevance to the work of the Preparatory Committee, included inA/46/48, Report of the Preparatory Committee for the United Nations Conference onEnvironment and Development, p. 21. See also Decision 1/1 of the PreparatoryCommittee of the United Nations Conference on Environment and Development,Role of Non-Governmental Organizations in the Preparatory Process, reprinted in Willetts,‘The Conscience of the World’, pp. 302–303. According to Willetts, Decision 1/1 was ‘oneof the most restrictive texts on NGOs ever adopted by the UN’, mostly due to thephrase ‘Non-governmental organizations shall not have any negotiating role in thework of the Preparatory Committee’, see ‘From Stockholm to Rio’, pp. 74–75. Thesame phrase is used in the section on NGO participation in UN conferences (para. 50)of the ECOSOC resolution 1996/31 on consultative arrangements.

25 A/46/48, Report of the Preparatory Committee for the United Nations Conference on Environmentand Development, 1991, paras. 9–10, and Bertil Hagerhall, ‘The Evolving Role of NGOs’, inGunnar Sjostedt et al. (eds.), International Environmental Negotiations: Process, Issues andContexts, Swedish Council for Planning and Coordination of Research and the SwedishInstitute of International Affairs, Report 93:1, p. 71.

26 Hagerhall, ‘The Evolving Role of NGOs’, p. 71.27 A/RES/46/168, United Nations Conference on Environment and Development, 19 December

1991, para. 9(f).28 The United Nations, 1997, p. 20 andWilletts, ‘From Stockholm to Rio’, p. 70. According

to E/1993/12, Rules of Procedure of the Commission on Sustainable Development, 29 January1993, para. 15, 1,400 NGOs were accredited to the conference. It thus seems that lessthan half of those who were accredited actually participated.


process and the conference, only four out of 1,420 NGOs were refusedaccreditation by the UNCED Secretariat.29

As for the modalities for participation, NGOs were allowed tomake oral statements in the plenary and in the subsidiary bodiesupon the invitation of the chairperson.30 During the plenary meetingsof the conference, only a few NGO statements were allowed.31 Writtenstatements could be distributed, but not as official documents and at theexpense of the NGOs.32 It was explicitly stated, in the rules for both NGOparticipation in the preparatory process and in the conference itself,that NGOs should not have a negotiating role in the conference or itspreparatory process.33 This rule, although seemingly obvious, hadnever been formulated as such before.34 NGOs took part in fifteennational delegations, but were to a large extent excluded from theintergovernmental negotiations on the documents which were to bepresented at UNCED, as these negotiations were held in informal meet-ings to which NGOs were not admitted.35

Theparallel NGOForum inRio,which gathered together around 17,000people, drafted andnegotiatedmore than thirty alternative treaties.36 Notonly were environmental NGOs active in Rio and during the preparatoryprocess, but also many other types of NGOs – such as industrial andbusiness organisations, indigenous peoples’ organisations, youth groups,scientific organisations, women’s organisations and trade unions.37

29 Pratap Chatterje and Matthias Finger, The Earth Brokers: Power, Politics and WorldDevelopment, London: Routledge, 1994, p. 84.

30 A/48/37, Report of the Preparatory Commission for the United Nations Conference on HumanSettlements (Habitat II), 9 March 1993, annex, Rules of Procedure for the Participation ofNon-Governmental Organizations (analogous to the rules for the Rio Conference), para. 10,andA/CONF.165/5,Accreditation of Non-Governmental Organizations, 13 February 1996, para. 2.

31 At most plenary session, only one NGO was allowed to deliver a statement. During twosessions, two or three NGO statements were delivered. A/CONF.151/26/Rev.1, vol. II(Proceedings of the Conference), pp. 9–12.

32 A/48/37, annex,Rules of Procedure for the Participation of Non-Governmental Organizations, para 11.33 Decision 1/1 of the Preparatory Committee of the United Nations Conference on Environment and

Development, Role of Non-Governmental Organizations in the Preparatory Process, para. 4(a), inWilletts, ‘The Conscience of the World’, p. 302, A/48/37, annex, Rules of Procedure for theParticipation of Non-Governmental Organizations, para. 9.

34 Arts, The Political Influence of Global NGOs, p. 29.35 Peter M. Haas and Marc A. Levy, ‘Appraising the Earth Summit: How Should We Judge

UNCED’s Success?’, 34 Environment (1992), p. 6, at n. 26 and Hagerhall, ‘The EvolvingRole of NGOs’, p. 71.

36 Hagerhall, ‘The Evolving Role of NGOs’, p. 73.37 Chatterje and Finger, The Earth Brokers, pp. 86–91; Hagerhall, ‘The Evolving Role of

NGOs’, p. 69.


There are different views as to what extent NGOs influenced thetext of Agenda 21 and other texts adopted by the conference.38

Nevertheless, Agenda 21 in several ways expresses recognition of therole of NGOs and ‘major groups’, notably in a specific chapter titled‘Strengthening the Role of Non-Governmental Organizations: PartnersFor Sustainable Development’.39 The chapter, being wide in scope butvague as to its character, includes a section on more access for NGOs tothe UN systemby reviewing ‘formal procedures andmechanisms for theinvolvement of these organizations at all levels from policy-making anddecision-making to implementation’.40 However, Agenda 21 did notonly recognise NGOs as important actors, but regarded ‘the commit-ment and genuine involvement of all social groups’ as critical to theeffective implementation of the Agenda, and stated that a need for newforms of participation had emerged in the context of environment anddevelopment.41 It was therefore concluded that any policies, definitionsor rules affecting access to and participation by NGOs in the work of theUN institutions or agencies associated with the implementation ofAgenda 21 should ‘apply equally to all major groups’.42 Agenda 21 alsoincluded an outline of how the follow-up to the Agendawas to be carriedout within and outside the UN system. In general, it was said that the UNsystem should, in consultationwithNGOs, takemeasures to ‘design openand effective means to achieve the participation of non-governmentalorganizations, including those related to major groups, in the processestablished to review and evaluate the implementation of Agenda 21 atall levels and promote their contribution to it’ and that ‘Procedures shouldbe established for an expanded role for non-governmental organizations,including those related to major groups, with accreditation based on theprocedures used in the Conference’.43

Among the concrete recommendations included in Agenda 21 were,inter alia, to establish a Commission on Sustainable Development inaccordance with Article 68 of the UN Charter with participation of

38 Arts, The Political Influence of Global NGOs, p. 28.39 Agenda 21, Chapter 27, adopted by the plenary of the Rio Conference on 14 June, 1992,

in A/CONF.151/26/Rev. 1, annex II, Volume I. As to the background of the expression‘major groups’, see Willetts, ‘From Stockholm to Rio’, p. 75.

40 Ibid., Chapter 27.6. 41 Ibid., Chapters 23.1–23.2 (emphasis added).42 Ibid., Chapter 23.3. In section III of Agenda 21, the following ‘major groups’ were

identified: women, children and youth, indigenous people, NGOs, local authorities,workers and trade unions, business and industry, scientific and technologicalcommunities and farmers.

43 Ibid., Chapters 38.43, 38.44.


NGOs, including industry and the scientific community.44 As a conse-quence, the UN Commission on Sustainable Development was set up byECOSOC in 1993, following a request by the General Assembly.45 TheCommission is composed of representatives of UN member states, andNGOs participate in the Commission in a role as observers. Before theadoption of the present rules for consultative status in 1996, theCommission on Sustainable Development accredited a large numberof NGOs without consultative status with ECOSOC for participation inits work.46 Any NGO which was accredited to participate in the work ofthe PrepCom for UNCED by the conclusion of its fourth session couldapply for and was to be granted Roster status with the Commission.47

Even after the adoption of the new ECOSOC arrangements for consulta-tion, the Commission keeps a Roster listing a large number of NGOswhich participate in its work without being in consultative status withthe ECOSOC.48

8.4 The World Conference on Human Rights

The World Conference on Human Rights of 1993 constituted the nextlandmark as regards NGO participation in UN conferences. The GeneralAssembly expressed a clearly generous approach towards NGO partici-pation from the outset. In the resolution whereby the Assembly decidedto convene the conference, it requested:

non-governmental organizations concerned with human rights to assist thePreparatory Committee and to undertake reviews and submit recommendationsconcerning the Conference and the preparations therefor to the PreparatoryCommittee through the Secretary-General and to participate actively in theConference.49

44 Agenda 21, Chapters 38.11–38.13.45 E/1993/207, Establishment of the Commission on Sustainable Development, 12 February 1993

and A/RES/47/191, 29 January 1993. See also section 7.2.46 E/AC.70/1994/5, General Review of Arrangements for Consultations with Non-Governmental

Organizations, para. 101.47 ECOSOC Decision 1993/215, Procedural Arrangements for the Commission on Sustainable

Development, para. 2(c), in E/1993/INF/2, 4 March 1993. For a detailed description on thedevelopments as regards co-operation between the Commission and NGOs, seeWilletts, ‘From Stockholm to Rio’, pp. 76–79.

48 See, e.g., E/CN.17/1998/20, Commission on Sustainable Development. Report on the Sixth Session,annex I (Attendance).

49 A/RES/45/155, World Conference on Human Rights, adopted on 18 December 1990.


This can be compared to the resolution by which the Assembly decidedto convene the Rio Conference, in which it was stated that ‘relevant’NGOs in consultative status with ECOSOCwere requested to ‘contributeto the Conference, as appropriate’.50 In the PrepCommeetings, NGOs inconsultative status with ECOSOC, as well as those which lacked suchstatus but were active in the field of human rights and/or development,were allowed to participate.51 A large number of NGOs were accreditedto and participated in themeetings of the PrepCom.52 In addition,manyNGOs participated in the regional meetings that were held prior to theconference in Asia, Africa and Latin America.53 To these regional meet-ings, the PrepCom decided to invite, first, NGOs in consultative statuswith ECOSOC active in the field of human rights and, secondly, otherNGOs which were active in the field of human rights and/or develop-ment and had their headquarters in the region concerned. Concerningthe latter category, however, the states in the region were to be con-sulted first.54 A group of well-known NGOs (among them AmnestyInternational, QCEA (the Quakers), the International Commission ofJurists, the International Federation for Human Rights and MinorityRights Group) proposed to the PrepCom that a considerably widerrange of organisations should be allowed to participate in the regionalmeetings. According to the proposal, NGOs with status similar to con-sultative status at the specialised agencies or at regional human rightsIGOs, and indigenous peoples should be invited.55

The rules for accreditation to the conference were elaborated by thePrepCom and adopted by the conference itself as part of the Rules ofProcedure. The rules had been the subject of fierce debate betweenstates and NGOs during the preparatory process; Asian states in parti-cular had tried to minimise NGO participation in the conference. It wasnot until PrepCom III that agreement could be reached on generous

50 A/RES/44/228, United Nations Conference on Environment and Development, 22 December1989, Part II, para. 12.

51 E/AC.70/1994/5/Add.1, General Review of Current Arrangements, 7 June 1994, para. 8.52 For instance, almost 100 NGOs participated in PrepCom III and around 140 in PrepCom

IV, A/CONF.157/PC/INF.1, 23 September 1992 and A/CONF.157/PC/INF.1, 26 May 1993.53 166 NGOs participated in the regional meeting for Africa, 169 in the meeting for Latin

America and 151 in themeeting for Asia, E/AC.70/1994/5/Add.1, General Review of CurrentArrangements, 7 June 1994, para. 10.

54 A/CONF.157/PC/54, Report of the Preparatory Committee for the World Conference of HumanRights, 8 October 1992, annex II, Decision PC.3/2.

55 A/CONF.157/PC/50/Rev.1, Recommendations Concerning the Participation, 17 September1992.


rules after firm lobbying from NGOs.56 According to the rules, NGOs inconsultative status with ECOSOC and with competence in the field ofhuman rights, as well as other NGOs which had participated in thePrepCom meetings, could designate representatives to participate asobservers in the conference, its committees and working groups, onquestions within the scope of their activities.57 This was an importantdevelopment in terms of NGO participation in UN conferences, as manylocal and regional organisations without consultative status were ableto participate. The total number of participants in the conferenceamounted to around 7,000.58 Of these, 3,691 persons were NGO repre-sentatives from 841 organisations; 593 NGOs were not in consultativestatus with ECOSOC.59 In other words, more NGOs and NGO represen-tatives participated in the Vienna Conference than in the Earth Summitin Rio. Almost 600 organisations of the accredited NGOs werenational;60 it was also seen as an important achievement that manyNGOs from the South took part in the conference, many of them for thefirst time in an international meeting of this kind.61

A pre-Conference NGO Forum was also held, which among otherobjectives aimed at submitting common recommendations to the UNconference.62 Some 2,700 NGOs participated.63 The final document ofthe NGO Forum included recommendations on, inter alia, the recogni-tion of the right to self-determination of indigenous peoples and aholistic approach to the right to development.64

56 For a detailed account of this debate, see William Korey, NGOs and the UniversalDeclaration of Human Rights: A Curious Grapevine, New York: Palgrave Macmillan, 1998,pp. 278–280.

57 A/CONF.157/8, Rules of Procedure of the World Conference on Human Rights, 14 June 1993,Rule 66.

58 The United Nations, 1997, p. 31.59 47 Yearbook of the United Nations, Dordrecht: Martinus Nijhoff, 1993, p. 908; Korey, NGOs

and the Universal Declaration of Human Rights, p. 288.60 E/AC.70/1994/5/Add.1, General Review of Current Arrangements, 7 June 1994, para. 13.61 The Joint Liaison Project, launched by the International Service for Human Rights in

Geneva and the Ludwig Bolzmann Institute of Vienna had an important role in thisrespect. It was created with the purpose of achieving the ‘fullest possible contributionand participation of NGOs particularly from the South’, and kept NGOs throughout theworld informed about the preparatory meetings, the NGO Forum and the WorldConference itself. Korey, NGOs and the Universal Declaration of Human Rights, p. 280.

62 Manfred Nowak (ed.),World Conference on Human Rights, Vienna, June 1993: The Contributionof NGOs, Reports and Documents, Vienna: Manz, 1994, p. 4.

63 Korey, NGOs and the Universal Declaration of Human Rights, p. 288. 64 Ibid., p. 5.


As mentioned above, the Rules of Procedure allowed for NGOsto designate representatives to participate in the meetings of theconference, its main committees and, ‘as appropriate’, any other com-mittee or working group on questions within the scope of their activ-ities.65 However, the different bodies of the conference could requirethat a meeting be held in private.66 NGOs were excluded from the maindrafting committee and were physically separated from the govern-ment delegates.67 Written statements by NGOs were issued as officialdocuments, which is otherwise generally not the case.68 For the sake ofcomparison, it can be noted that the 1996 ECOSOC arrangements forconsultation with NGOs, which include rules on the participation ofNGOs in UN conferences, provide that written statements by NGOs shallnot be issued as official documents.69 Eventually, permission was alsogranted for oral statements from NGOs at the conference, althoughunder clear restrictions.70

As has become customary for this type of document, the ViennaDeclaration and Programme of Action which was adopted by the171 states participating in the conference repeatedly mentionsNGOs.71 The most important passage as regards NGOs is as follows:

The World Conference on Human Rights recognizes the important role ofnon-governmental organizations in the promotion of all human rights and inhumanitarian activities at national, regional and international levels . . . Whilerecognizing that the primary responsibility for standard-setting lies with States,the Conference also appreciates the contribution of non-governmental organi-zations to this process. In this respect, the World Conference on Human Rights

65 A/CONF.157/8, Adoption of the Rules of Procedure: Rules of Procedure of the World Conference onHuman Rights, 14 June 1993, Rule 66.

66 Ibid., Rule 56.67 Michael H. Posner, ‘ASIL Report: Reflections on the Vienna Conference’, ASIL

Newsletter, September 1993; Korey, NGOs and the Universal Declaration of Human Rights,pp. 292–293.

68 Rule 67 on written statements of procedure by NGOs, as opposed to the rules of someother conferences, did not provide that statements would not be issued as officialdocuments. NGOs at the Rio Conference could not issue statements as officialdocuments: Decision 1/1 of the Preparatory Committee of UNCED, in Willetts, ‘TheConscience of the World’, p. 302. See also NGO statements, such as A/CONF.157/PC/79,20 April 1993, presented by the American Society of International Law to thePreparatory Committee.

69 E/RES/1996/31, para. 52.70 Korey, NGOs and the Universal Declaration of Human Rights, p. 292.71 The United Nations, 1997, p. 30. For mentions of NGOs in the Vienna Declaration and

Programme of Action, see, e.g., paras. 13, 18, 38, 73.


emphasizes the importance of continued dialogue and cooperation betweenGovernments and non-governmental organizations. Non-governmental organ-izations and their members genuinely involved in the field of human rightsshould enjoy the rights and freedoms recognized in the Universal Declaration ofHuman Rights, and the protection of the national law. These rights and free-domsmay not be exercised contrary to the purposes and principles of the UnitedNations. Non-governmental organizations should be free to carry out theirhuman rights activities, without interference, within the framework of nationallaw and the Universal Declaration of Human Rights.72

From a general point of view, it was of importance for human rightsNGOs that the Vienna Declaration and Programme of Action underlinedthat the promotion and protection of human rights was a legitimateconcernof the international community andNGOs and apriority objectiveof the United Nations.73 More specifically, the UN Centre for HumanRights (now the Office of the High Commissioner for Human Rights) wasset up as part of the follow-up to the Conference with the HighCommissioner for Human Rights as its head. Amnesty International andother NGOs had strongly advocated the creation of such an institution atthe conference, as they had done several times before.74 According to onewriter, the decision of the conference to call the United Nations to estab-lish a High Commissioner for Human Rights was ‘a consequence of anunprecedented and unparalleled outburst of lobbying by nongovernmen-tal organizations’.75 It should be observed, however, that the recommen-dation of the conference on thismatterwas considerablyweaker than thatwhich had been advocated by the NGOs.76 Some other demands putforward by NGOs, such as strengthening measures to protect the humanrights of women, an unequivocal denunciation of racism, xenophobia and

72 A/CONF.157/23, World Conference on Human Rights, Vienna Declaration and Programmeof Action, 12 July 1993, para. 38.

73 See also the Vienna Declaration and Programme of Action, para. 4.74 NGOs had previously supported the proposals of governments to create a UN High

Commissioner for HumanRights in 1950, 1965 and in the late 1970s. Philip Alston, ‘TheUnited Nations High Commissioner for Human Rights’, ASIL Newsletter, September 1995and Posner, ‘ASIL Report: Reflections on the Vienna Conference’; Nowak, WorldConference on Human Rights, p. 9; Korey, NGOs and the Universal Declaration of HumanRights, p. 282.

75 Korey, NGOs and the Universal Declaration of Human Rights, p. 273.76 Nowak, World Conference on Human Rights, p. 8. The High Commissioner has established

regular contacts and co-operation with NGOs in different ways, including theprogramming of human rights activities, country visits and meetings of the UNhuman rights organs, see A/53/372, Follow-Up to the World Conference on Human Rights,11 September 1998, para. 24 and E/CN.4/1998/122, Report of the United Nations HighCommissioner for Human Rights, 23 February 1998, paras. 123–124.


other forms of intolerance, and recognition of the right to asylum, foundtheir way into the final document of the conference.77

8.5 Third Session of the Conference of the Parties tothe Framework Convention on Climate Change

The UN FCCC was adopted in May 1992 and opened for signature at theRio Conference the same year. The Convention establishes its own insti-tutional arrangement, the yearly Conference of the Parties (COP), withthe purpose of developing the normative content of the agreement andsupervising the state parties’ implementation of and compliance withthe Convention. The Third Session of the COPmet in Kyoto in December1997. On its final day it adopted the Kyoto Protocol, which is a legallybinding instrument for the reduction of greenhouse gas emissions.

The Convention also establishes an autonomous framework forco-operation between NGOs and the parties to the Convention.78

Article 4, para. 1(i) provides that the state parties to the Conventionshall promote and encourage wide participation, including that ofNGOs, in education, training and public awareness related to climatechange. Article 7, para. 2(l), regarding the supervision by the COP of theimplementation of the Convention, states that the conference shall‘seek and utilize, where appropriate, the services and cooperation of,and information provided by, competent . . . non-governmental bodies’.

Article 7(6) provides the legal basis for NGO participation in proceed-ings of the Conference of the parties by stating that:

Any body or agency, whether national or international, governmental or non-governmental, which is qualified in matters covered by the Convention, andwhich has informed the secretariat of its wish to be represented at a session ofthe Conference of the Parties as an observer, may be so admitted unless atleast one-third of the Parties present object. The admission and participationof observers shall be subject to the rules of procedure adopted by the Conferenceof the Parties.

The understanding of the expression ‘non-governmental body oragency’ included in this Article of the Convention is, like the institutionalframework, autonomous. In ECOSOC resolution 1996/31 on arrangements

77 Nowak, World Conference on Human Rights, p. 10.78 On the participation and influence of NGOs on the climate change negotiations

generally, see Asher Alkoby, ‘Non-State Actors and the Legitimacy of InternationalEnvironmental Law’, 3 Non-State Actors and International Law (2003), pp. 36–41.


forconsultationswithNGOs,aswellaswithinmostcorrespondingarrange-ments within other IGOs, the term ‘NGO’ is specified in a more or lessdetailed manner.79 The understanding of the term in the FCCC isbroader. The expression ‘non-governmental body or agency’ is widerthan the usual ‘non-governmental organisation’, probably chosen inorder to embrace research institutes and (public) academic bodies. Thesame expression is used in the Rules of Procedure, as was mentionedabove. There is, however, a practice of requiring non-governmentalbodies to ‘furnish proof of their non-profit (tax-exempt) status in aState member of the United Nations or of a specialized agency or ofthe International Atomic Energy Agency’.80 In other words, profit-making bodies are not admitted as observers to the conference.

At its first session, the COP agreed that the Secretariat should invite toall future sessions of the conference and its subsidiary bodies all organ-isations which had been admitted before, unless an objectionwas raisedby the state parties. Accordingly, all organisations which had beenadmitted to the first and second sessions of the COP were admitted tothe third session. In addition, a number of new organisations which hadrequested admission were invited. No objections were raised to any ofthe organisations on the Secretariat’s list by the COP Bureau before thethird session or by the COP itself during the session.81

The lists of participants in the sessions of theCOPpresent a varied groupof non-governmental bodies. Many attending organisations and bodieswere environmental NGOs, trade unions or research institutes. At leasthalf of the non-governmental participants at the third session seem tohave been industrial organisations – i.e. organisations formed by theindustry to represent their interests, such as the Australian CoalAssociation and the Canadian Vehicle Manufacturers’ Association.82 The

79 See chapter 7 and section 8.2.80 FCCC/CP/1997/4, Organizational Matters: Admission of Organizations as Observers,

12 November 1997, para. 3.81 Ibid., paras. 2–3, 5 and FCCC/CP/1997/7, Report of the Conference of the Parties on its Third

Session, 18 March 1998, para. 28.82 FCCC/CP/1997/4, Organizational Matters: Admission of Organizations as Observers,

12 November 1997, annex and Chiara Giorgetti, ‘From Rio to Kyoto: A Study of theInvolvement of Non-Governmental Organizations in the Negotiations on ClimateChange’, 7 New York University School of Law Environmental Law Journal (1999), pp. 220–222.However, it is very hard to tell whether organisations promote industrial and businessinterests or have other concerns without a detailed examination of each organisation,and the names of the organisations do not provide much guidance. For instance, coaland oil companies have formed an organisation called the Climate Council and thechemical sector is represented by the International Climate Change Partnership, ibid.


total number of participants in the third session of the COP amounted toalmost 10,000 people, of which 2,200 were official delegates and the restobservers from different kinds of organisations and representatives ofthe press.83 The number of (all kinds of) NGOs represented at the sessionwas 243.84

Provisions on the modalities for NGO participation in internationalconferences are normally provided by the rules of procedure. Accordingto Article 7(3) of the FCCC, the COP should, at its first session, adoptits own rules of procedure. At Kyoto, however, the rules had still notbeen adopted, as the first and second as well as the third sessions of theCOP were unable to agree on them. The President of the Conferencethus decided that the draft rules of procedure should continue to beapplied during the third session.85 These Rules reiterated thewording ofArticle 7(6) of the Convention on the representation of IGOs and NGOsat the sessions of the COP and specified the modalities forsuch participation:

Such observers may, upon invitation of the President, participate without theright to vote in the proceedings of any session inmatters of direct concern to thebody or agency they represent, unless at least one third of the Parties present atthe session object.86

According to draft Rule 30, meetings of the COP should be heldin public, unless the conference decided otherwise. The daily pro-grammes from the third session demonstrate that, while the plenariesand the meetings of the Committee of the Whole were public andaccordingly open to NGOs, the meetings of negotiating groups, as wellas several other meetings, were closed.87 NGOs were allowed to deliveroral statements at the plenaries, but were given the floor on only twelveoccasions during these meetings (as compared to around 130 state-ments delivered by state representatives and twenty-one by IGOs).88

83 United Nations Press Release, Industrialized Countries to Cut Greenhouse Gas Emissions by5.2%, Kyoto, 11 December 1997.

84 FCCC/CP/1997/7, Report of the Conference of the Parties on its Third Session, 18 March 1998,annex II.

85 FCCC/CP/1997/5, Organizational Matters: Adoption of the Rules of Procedure, 19 November1997, paras. 3–4.

86 FCCC/CP/1996/2, Organizational Matters: Adoption of the Rules of Procedure, 22 May 1996,Draft Rules of Procedure, Rule 7(2).

87 Conference of the Parties, Third Session, 1–10 December 1997, Daily Programme, Nos.1–3 and 9 (1–3 December and 10 December).

88 FCCC/CP/1997/7, Report of the Conference of the Parties on its Third Session, 18 March 1998,annex I.


Written statements by NGOs were not issued as official conferencedocuments.89

A study of the techniques used by different types of NGOs to influencethe climate change negotiations at the three first COP sessions demon-strates that industrial organisations mainly used direct contacts withstate representatives, the presentation of draft texts to governmentaldelegations and contacts with the mass media as their methods, whileenvironmental NGOs used these techniques as well as other methodsmore directed at the public, such as publications (for instance thedaily newspaper ‘ECO’), and visible protests inside and outside theconference centre.90 Perhaps surprisingly, environmental NGOs andindustrial organisations also co-operated with each other on someissues, and some members of environmental NGOs participating inthe sessions of the COP sat on the board of directors of companies of,for instance, renewable energies corporations.91

8.6 The Rome Conference for an InternationalCriminal Court

Introduction

The Rome Conference held in 1998 for the establishment of an interna-tional court is of special interest to the present study, for several reasons.The adoption of the Statute of the Court on 17 July 1998 constituted asignificant development of international law. In spite of – or because of –the importance of the instrument, the draft Statute which was before theconference was far from a finalised text, containing around 1,700 squarebrackets representing points of disagreement and different alternativesfor the wording of provisions.92 This fact, taken together with the Rules ofProcedure and the actual proceedings of the Conferencewhich admitted aconsiderable degree of NGO participation, created a very special opportu-nity for NGOs to influence an important step in international legal

89 FCCC/CP/1996/2, Organizational Matters: Adoption of the Rules of Procedure, 22 May 1996,Draft Rules of Procedure, Rules 7, 36 e contrario.

90 Giorgetti, ‘From Rio to Kyoto’, pp. 239–241 and ‘Report of the Third Conference of theParties to the United Nations Framework Convention on Climate Change’, 12 EarthNegotiations Bulletin, No. 76, p. 15.

91 Ibid., pp. 234–235.92 Philippe Kirsch, ‘The Development of the Rome Statute’, in Roy S. Lee (ed.),

The International Criminal Court: The Making of the Rome Statute, The Hague: Kluwer LawInternational, 1999, p. 452.


development. With over 200 NGOs accredited to the conference, the levelof civil society participation was unusually high for a law-making confer-ence.93 After the adoption of the Statute, it was generally recognised thatNGOs had played an important role in the process.94

The study of the role of NGOs at the Rome Conference is more detailedthan the descriptions of other conferences above and includes an examina-tionofNGO influenceon thenegotiations as experiencedby state andNGOrepresentatives.More concretely, the influenceofNGOson thenegotiationof theRomeStatutewas investigated through interviewswithpersonswhowere in key positions during the Rome Conference itself and the prepara-tory process, as well as through an examination of the conference docu-ments which provided the framework for NGO participation.

The discussions on establishing an international criminal court beganonly a few years after the founding of the United Nations when in 1948the General Assembly assigned the project to the ILC. The InternationalCommission of Jurists advocated a creation of such a court at theWorldConference on Human Rights in 1993.95 However, it was not until 1994,after several unsuccessful attempts by the ILC and other bodies, that thework on a draft Statute for the court could actually be completed andpresented to the General Assembly.96 The work on the draft Statute wasthen continued within an ad hoc Committee established by the GeneralAssembly, and later within the Preparatory Committee on theEstablishment of an International Criminal Court (the PrepCom).97

93 A/53/1,Annual Report of the Secretary-General on theWork of the Organization, 27 August 1998,para. 180. Actually, according to the Secretary-General, it was ‘unprecedented’ for alaw-making conference. However, it has already been mentioned that 234 NGOs(industrial organisations included) were accredited to the Third Session of the Parties tothe UN FCCC, which adopted the Kyoto Protocol.

94 Ibid., para. 183 (speaking about ‘civil society’), UN Press Release L/ROM/22,UN DiplomaticConference Concludes in Rome . . . , 17 July 1998; CICC Press Release, Momentum Builds,28 June 2001; and Adriaan Bos, ‘The International Criminal Court: A Perspective’, inRoy S. Lee (ed.), The International Criminal Court: The Making of the Rome Statute, The Hague:Kluwer Law International, 1999, p. 470.

95 Nowak,World Conference on Human Rights, p. 10; Korey,NGOs and the Universal Declaration ofHuman Rights, p. 282.

96 A/49/10, Supp. 10, Report of the International Law Commission, para. 91 and Roy S. Lee,‘The Rome Conference and its Contributions to International Law’, in Roy S. Lee (ed.)The International Criminal Court: The Making of the Rome Statute, The Hague: Kluwer LawInternational, 1999, pp. 2–3.

97 The ad hoc Committee was established by the General Assembly on 9 December 1994by means of resolution A/RES/49/53, Establishment of an International Criminal Court,17 February 1995, and the PrepCom on 11 December 1995 by means of ResolutionA/RES/50/46, 18 December 1995.


The PrepCom held six sessions between 1996 and 1998 and presented aconsolidated text for a Statute in its final report, together with draftRules of Procedure and a draft Final Act for the conference.98

In December 1997, the UN General Assembly decided that a diplo-matic conference of plenipotentiaries, open to all member states of theUnited States or its specialised agencies, would be held in Rome from15 June to 17 July 1998 with a view to adopting a convention on theestablishment of an international criminal court.99

Qualitative research interviewing

The decision to interview participants in the Rome Conference raisedquestions about how to select the interviewees, how to perform theinterviews and how to treat the material arising from them. Theseproblems are reflected in the sociological debate between quantitativeand qualitative theories on how empirical data should be sought andinterpreted. Quantitative research is here understood as a positivistapproach to empirical material, where data are obtained through stand-ardised means.100 Interviews carried out with such a method would,typically, be carried out with questionnaires or a pre-determined set ofquestions –maybe also with a given set of alternative answers to choosefrom – put to a large number of people. The analysis of the materialfound could result in figures, tables and graphs.

By contrast, researchers who use a qualitative method generally havea different conception of empirical knowledge, emphasising experi-ence, description and interpretation and the use of the subjects’perspective as a starting point.101 Accordingly, the techniques for identi-fying the respondents, for structuring the interview and formulatingthe questions and for analysing the results are different. The qualitativeinterview is sometimes called ‘non-standardised’, and its purpose is to

98 A/CONF.183/2, Report of the Preparatory Committee on the Establishment of an InternationalCriminal Court, 14 April 1998, paras. 2–15.

99 A/RES/52/160, Establishment of an International Criminal Court, 28 January 1998 (adopted atthe 72nd plenary meeting on 15 December 1997).

100 Mats Alvesson and Kaj Skoldberg, Reflexive Methodology: New Vistas for Qualitative Research,London: Sage, 2000, p. 3; David Silverman, Interpreting Qualitative Data: Methods forAnalysing Talk, Text and Interaction, London: Sage, 1993, pp. 10, 21–22; Russell H. Bernard,Social Research Methods: Qualitative and Quantitative Approaches, London: Sage, 2000,pp. 418–419.

101 Steinar Kvale, InterViews: An Introduction to Qualitative Research Interviewing, London: Sage,1996, p. 38; Alvesson and Skoldberg, Reflexive Methodology, pp. 3–4; Silverman,Interpreting Qualitative Data, pp. 23 ff.


obtain descriptions of the lived world of the subjects and their relationto it.102 Underlying this choice of method is a sceptical attitude towardsthe possibility of obtaining ‘objective’ data about complex social issuesand an emphasis on the subjective experiences of the interviewee asone of many possible stories.103

It is often held that the choice of method depends on what kind ofinformation is sought. For instance, Silverman is critical of the placingofquantitative andqualitativemethodsaspolaropposites, suggesting that‘It all depends upon what you are trying to do’.104 The basic questionI would like to answer, or at least discuss, in the light of informationobtained from the interviews is whether, in the view of the informants,NGOs asserted an influence on the negotiation of the Statute of the ICC. Ifthat question can preliminarily be answered in the affirmative, otherissues that should be discussed are how NGOs managed to influence thenegotiations–i.e.whichmethodswereused–andinwhatrespects thefinaltextof theStatutewas influenced.Thedifferentquestionsaskedareclearlyof a kind that cannot be answered in a clear-cut way. Rather, it can beassumed that the interview subjects will have rather complex and diver-ging views on what happened during the Rome Conference and the pre-paratory process. Thismeans that data regarding the influenceofNGOsonthenegotiation of the Rome Statute canhardly be quantified in anymean-ingful way. The factors involved in a situation of political pressure, aswellas in the interpretation of such a situation, are subjective. Although theprocess studied here led to a result that is in some sense objective, namelythetreaty textas itwasadoptedbytheconference, thisdoesnotoffermuchguidance. Even if the treaty text is a purely intergovernmental producton the surface, the questions asked must reach beneath this and beforeits adoption in time. It is on these grounds that I have chosen a methodwhich borrowsmore from qualitative than fromquantitative research.

A rather limited number of persons – three state representativesand two representatives of NGOs – who were in central positionsduring the Rome Conference and the preparatory process have beenidentified for the interviews. The interviews were semi-structured,i.e. carried out with a limited number of rather open questions thatwere put to all the interviewees.105 In order not to circumscribe the

102 Kvale, InterViews, pp. 13, 29. 103 Ibid., pp. 35, 41–44.104 Silverman, Interpreting Qualitative Data, p. 22. See also Alvesson and Skoldberg, Reflexive

Methodology, p. 4.105 On informal, unstructured, semi-structured and structured interviewing, see Bernard,

Social Research Methods, pp. 190–192.


possibility of describing what was really said, especially with regardto state representatives whose answers might otherwise appear asofficial statements, the information obtained through the interviews –both factual information and personal experiences and opinions –has been compiled into one coherent text without direct citations.Direct references are made only when information has been obtainedthrough other sources, such as papers and articles on the conference.It should be observed that, although all interviewed persons wereidentified through their official positions during the conference,their answers reflect personal experiences which do not necessarilycorrespond to the standpoints of their respective governments ororganisations.106

The legal framework for NGO participation

When the report of the ILC with the draft Statute for the internationalcriminal court was debated in the UN General Assembly in 1995, a smallgroup of NGOsmonitored the session.107 There are no arrangements forconsultations between the Assembly and NGOs, and debates in theAssembly can be monitored only by accredited NGOs from the balconyin the General Assembly Hall. Accordingly, NGOs do not have any rightto actual participation in the form of delivering oral or written state-ments or even walking around among the delegates in the meetingroom. As the PrepCom was a body established by the Assembly itfollowed the Assembly’s rules of procedure, so NGOs could listen tothe plenary sessions only during the first PrepComs. The ICRC, how-ever, was an exception in this regard, as it has had observer status with

106 The persons interviewed and their official positions during the Conference were asfollows: Sir Franklin Berman, legal adviser to the British Foreign and CommonwealthOffice and Head of the UK delegation; Christopher Hall, Legal adviser at AmnestyInternational’s International Secretariat; Ambassador Philippe Kirsch, Legal advisor tothe Canadian Department of Foreign Affairs, Head of the Canadian delegation andChairman of the Committee of the Whole; William Pace, Convenor of the NGOCoalition for an International Criminal Court and Executive Director of the WorldFederalist Movement; Per Saland, Director of Division, Swedish Ministry for ForeignAffairs, Vice Head of the Swedish delegation and Chairman of the Working Groupon General Principles and the Working Group on Applicable Law. In addition, onemember of a delegation from a Western European country gave some informalinformation. This concentration on persons from Northern, industrialised countriesis unfortunate, but was necessary for practical reasons.

107 William Pace and Mark Thieroff, ‘Participation of Non-Governmental Organizations’,in Roy S. Lee (ed.), The International Criminal Court: The Making of the Rome Statute, TheHague: Kluwer Law International, 1999, p. 391.


the General Assembly since 1990.108 NGOs did, nevertheless, attend themeetings of the PrepCom to an increasing extent during the preparatoryprocess. Twenty representatives of the NGO Coalition for theEstablishment of an International Criminal Court (hereafter the CICCor the NGO Coalition) attended the second session of the PrepCom,approximately fifty NGOswere represented at the fourth session, around150 representatives of approximately eighty NGOs attended the fifthsession, and over sixty NGOs were represented at the sixth session.109

At the later PrepCommeetings, NGOswere allowed to attendnot only theplenary sessions but also the working group meetings, while the infor-mal drafting groupmeetings continued to be closed to NGO observers.110

There were also intersessional meetings during the preparatory per-iod. Most of these took place at the International Institute of HigherStudies in Criminal Sciences in Syracuse. At thesemeetings, NGOs couldparticipate almost on an equal footing with state representatives, i.e.attend the meetings and move freely among state representatives, dis-tribute their materials and also participate in the discussion. Only thelargest and best-known NGOs were, however, able to prepare for andattend these meetings.

In December 1997, the General Assembly decided to convene theRome Conference. In the same resolution, it outlined the modalitiesfor participation of NGOs by requesting the Secretary-General to inviteNGOs accredited by the Preparatory Committee, with due regard to theprovisions of part VII of ECOSOC resolution 1996/31 (which deals withthe participation of NGOs in UN conferences) and in particular to therelevance of NGO activities to the work of the conference, to participatein the conference along the lines followed in the PrepCom.111 TheGeneral Assembly also stated that NGOs were invited to the conferenceon the basis of the understanding that participation meant:

* attending meetings of its plenary and, unless otherwise decided by theconference in specific situations, formal meetings of its subsidiarybodies except the drafting group,

108 A/RES/45/6, Observer Status for the International Committee of the Red Cross, 16 October 1990.The ICRC did in fact participate in the work of the PrepCom, see, e.g., A/AC.249/INF/2,List of Delegations, 29 August 1996.

109 ICC Monitor On-line, No. 2, 1998, article by Mark Thieroff, ‘CICC Report from WorkingGroup 3 of PrepCom 4’, ‘Initial Summary report by William Pace on PrepCom 5’, and‘Report on the March–April 1998 Session’.

110 CICC, Reports from Working Group 3 of PrepCom 4 and PrepCom 6.111 A/RES/52/160, Establishment of an International Criminal Court, 28 January 1998, para. 9.


* receiving copies of the official documents,* making available their materials to delegates, and* addressing, through a limited number of their representatives, its

opening and/or closing sessions, as appropriate, in accordance with therules of procedure to be adopted by the conference.112

Interestingly, the work of identifying likely NGOs for accreditation tothe conference by the PrepCom was carried out by the UN Secretariatin collaboration with the CICC.113 This was a rather controversial solu-tion, but since it was taken at a late stage when there was a shortageof time, there were no attempts to suggest other solutions. The rules foraccreditation were also generous, and the role of the NGO Coalitionwas mainly to identify the organisations which had been active duringthe preparatory process. There was, however, a screening mechanismwhichmade it possible for states to raise objections to the participationof particular NGOs. Such objections were made by China and Sri Lanka,for example, in the latter case in relation to an NGO which allegedlymaintained contacts with a Tamil organisation.

On the basis of the lists of NGOs compiled by the Secretariat and theCICC, the PrepCom decided to invite around 236 NGOs, represented byaround 450 accredited individuals, to the conference;114 160 govern-mental delegations participated, together with representatives of IGOsand the media.115

The Rules of Procedure for the conference included provisions forNGO participation which were almost identical to those outlined by theGeneral Assembly in its Resolution. According to Rule 63, NGOs invitedto the conference were allowed to participate through their designatedrepresentatives:

* by attending plenarymeetings of the conference and, unless otherwisedecided by the conference in specific situations, formalmeetings of thecommittee of the Whole and of subsidiary bodies established by it,

* by receiving copies of official documents,

112 Ibid.113 A/CONF.183/INF/3, Non-Governmental Organizations Accredited to Participate in the

Conference, para. 2 and Pace, ‘Participation of Non-Governmental Organizations’, inRoy S. Lee (ed.), The International Criminal Court: The Making of the Rome Statute, The Hague,Kluwer Law International, 1999, p. 393.

114 Pace and Thieroff, ‘Participation of Non-Governmental Organizations’, p. 392.115 UN Press Release, L/ROM/22, UN Diplomatic Conference Concludes in Rome with Decision to

Establish Permanent International Criminal Court, 17 July 1998.


* by making, through a limited number of their representatives, oralstatements to the opening and closing sessions of the conference, uponthe invitation of the President and subject to the approval of theconference.116

In addition, the Rules of Procedure provided that written statements bydesignated NGO representatives should be distributed by the Secretariatto delegations in the quantities and languagesmade available to it at thesite of the conference, provided that the statement was related to thework of the conference and dealt with a subject on which the organisa-tion had special competence. Written NGO statements were not pro-duced at the expense of the United Nations and were not issued asofficial UN documents.117

As provided by the Rules of Procedure, the conference established twoCommittees – the Committee of the Whole, in which all participatingstates were represented, and the Drafting Committee.118 The Committeeof the Whole established a number of Working Groups, such as theWorking Group on Applicable Law, the Working Group on Enforcementand the Working Group on General Principles. As far as I have beeninformed, NGOs were allowed to attend all formal meetings but one.

The majority of the NGOs which attended the Rome Conference werepart of the CICC, which was formed in 1995 with the purpose of advo-cating a fair, effective and independent ICC. The Coalition has notacquired any legal personality, and the secretariat is hosted by theWorld Federalist Movement. The initiative to form the Coalition wastaken by a small group of NGOs – among others, Amnesty International,Human Rights Watch, Lawyers for Human Rights and the WorldFederalist Movement.119 As of August 2004, the Coalition broughttogether over 1,000 NGOs, international law experts and groups.120

Influence on the negotiations

General

There was general agreement among the informants that NGOs played avery important role in the negotiation of the Rome Statute, both beforeand during the conference. The views on what factors contributed tothis influence and in what respects it made an impact differed between

116 A/CONF183/6, Rules of Procedure, 23 June 1998. 117 Rule 64. 118 Rules 48, 49.119 Pace and Thieroff, ‘Participation of Non-Governmental Organizations’, p. 391.120 Website at www.iccuow.org.


state and NGO representatives, as will be described below. Severalpersons pointed out that the negotiation of the Rome Statute was aprocess with special characteristics because of its complexity and partlylegal–technical nature, which created a special opportunity for NGOs toprovide specialised knowledge and information, in particular in rela-tion to smaller delegations. One state representative made the compar-ison with the Ottawa Land Mine Conference in 1997, which dealt with a‘simple’ issue – i.e. whether or not to ban land mines – and which wasnot very controversial, as almost everyone could agree that land minesshould be banned. That negotiation was therefore not a particularlyinteresting example of NGO pressure as compared to the RomeConference, in the view of the state representative.

Another point of general agreement, among both state and NGOrepresentatives, was that the forming of the CICC was central toNGOs’ success. One NGO representative pointed to the fact that throughthe formation of the Coalition the NGOs together had by far the largestdelegation, amounting to over 200 people and involving some95 per centof all NGO members participating in the conference.

The modalities for NGO participation

As is clear from the Rules of Procedure, NGOs could attend plenarymeetings and formal meetings of the Committee of the Whole, as wellas of subsidiary bodies established by it, unless otherwise decided inspecific situations. This meant in practice that they could walk aroundin themeeting rooms among the governmental delegates during almostall the formalmeetings, even if the seatingwas sometimes limited. Onlythe Working Group on General Principles, on one occasion, closed itsdoors to NGOs. When the definition of the term ‘gender’ was to bediscussed, several delegations demanded that the NGOs should leavetheWorking Group. SomeNGO representatives tried to stay in the roomafter the decision to close the doors had been taken, which produced avery tense atmosphere. One of the state representatives interviewedunderlined that this kind of behaviour on the part of NGOs was verybadly received by the governmental delegations and might even havebeen counterproductive in relation to NGO access to future meetings.Another state representative said that themore NGOs observed the kindof role that governments expected from them, the more they werewelcome. If they overstepped it, there was a risk they would suddenlyfind they were not welcome, so it was in the NGOs’ own interest to keepto their role.


Apart from the formal meetings, there were, of course, informal meet-ings and consultations. One of the NGO representatives described thevariety of meetings as the informal, the formal–informal, the formal andthe negotiation meetings in halls and restaurants. The state representa-tives were all of the view that if NGOs are granted wide access to meet-ings, the ‘real’ negotiations tend to move elsewhere. On the other hand,one of the state representatives interviewed pointed out that NGOs oftenknow within a few minutes after the conclusion of such a meeting whathas happened. The same person thought that, generally speaking, almostall of the actual drafting during this kind of event takes place inmeetingswhere NGOs are not present, but that these meetings concern mattersof detail rather than of principles. He further stressed the importance ofmaintaining a space for informal meetings open to governmental dele-gates only. The issues discussed during negotiations are often politicallysensitive, and considerable experience is required in order to find solu-tions where governments can adjust or alter their positions withoutlosing face. Another state representative, on the other hand, was of theview that NGOs should have wide access even to informal meetingsif possible, as closed doors tend to feed a lack of understanding.

Strategies and working methods of NGOs

The NGOs used a variety of techniques and strategies for assertinginfluence on the negotiations. Among the concrete methods were thedistribution of written material through the Secretariat or privately,either generally (e.g. by placing them beside entrances to meetingrooms) or to a selected group of people or delegations. These materialsincluded position papers, reports, text proposals and information aboutthe NGOs themselves. Some of the larger NGOs sent material to govern-mental delegations before the conference started. In general, it wasmentioned by both NGO and state representatives that the emphasisin the work performed by NGOs during the conference was not onadvocacy but on information, education and service. The detailed andanalytical material produced by in particular the larger and more well-known NGOs was widely used and appreciated. Through their speciali-sation, NGOs were able to produce wide-ranging analyses of manydifferent issues. Since the Rome Statute was a very complex matterinvolving a wide range of issues, the smaller delegations especially(but not only) were assisted by the NGO material.

The CICC also produced two daily ‘newspapers’, Terra Viva and theCICCMonitor, as well as the electronic newsletter On the Record. According


to one of the state representatives ‘no one’ paid attention to Terra Viva atfirst since it was an NGO product. Later, however, people started tonotice that it commented on daily events in great detail, includingwhat different delegates had said, sometimes with critical remarks, sothat after a while people became very curious to find out who ‘was thevictim of the day’. The representative thought that this could in itselfhave had a certain influence on the negotiations, since no onewanted tobe attacked personally.

The CICC did not produce draft provisions, but worked only with afew basic principles and by reacting to the drafts put forward by govern-ments. According to one of the NGO representatives, governmentaldelegations in general often reacted negatively to draft provisions putforward by NGOs. This was to some extent confirmed by the staterepresentatives. Individual NGOs, including those which belonged tothe Coalition, did, however, produce and present drafts during theRome negotiations. One of the state representatives interviewed saidthat it was not unusual for governments to adopt whole sections ofdrafts from NGOs – mostly the smaller delegations but also delegationswhich included NGO representatives.

A special kind of material produced by the CICC was the lists orcompilations of state positions. According to one of the state represen-tatives, NGOs used these lists in order to demonstrate when there was asufficient majority for a certain position for a ‘safe vote’ on differentparts of the draft Statute. However, voting took place only three timesduring the Conference.

The Rules entitled NGOs to deliver oral statements to the opening andclosing sessions of the conference, but not in working groups. Thesestatements seem to have been of little importance in terms of influenceon the negotiations. Two factors were mentioned by the state represen-tatives in this regard. First, it was considered important that the numberof NGO statements during a meeting was limited. The UN Commissionon Human Rights was mentioned as an example of a body where NGOstatements were far too many. Second, it was held that when particularNGOs delivered very critical statements during or after the completionof difficult negotiations, this produced a bad atmosphere and a negativereaction towards NGOs among governmental delegations.

During the preparatory process and the conference itself, a complexweb of personal contacts between state and NGO representatives waswoven during meetings and seminars, lunches, receptions and so on.Lobbying started long before the conference; NGOs even contacted state


representatives well in advance in order to try to make them takeon certain functions during the conference. Meetings took place duringthe conference between NGOs and individual governments, with the‘Group of like-minded’ or other governments (see below), and at theinitiative of both states and NGOs. There were alsomeetings of differentkinds between the sessions of the PrepCom. It was not unusual, forinstance, for state representatives to meet one of the larger NGOs ontheir way to an official encounter in order to be briefed on recentdevelopments. An NGO representative explained that when you areinvolved in a process like the Statute of the International CriminalCourt for a period of several years, you get to know each other andbecome friends. This was to some extent confirmed by the state repre-sentatives, who on several occasions mentioned their appreciation ofthe central NGO figures who were regarded as highly knowledgeableand responsible.

The ‘Group of like-minded’, a bloc of developed and developing stateswhich became the leading force for an effective and independent ICC,held special meetings with representatives of the CICC. In one staterepresentative’s view, these meetings were not particularly important,as the objectives of the state and the NGO side were to a great extentshared. It was more important, in his view, that the CICC arrangedmeetings with the heads of different delegations, and maybe evenmore so when the largest and best-known NGOs arranged such meet-ings on their own. These organisations ‘have a name’, the state repre-sentative pointed out, which they can use for creating publicity if agovernment alters or adjusts its position.

One issue on which the informants’ opinions differed clearly was towhat extent governmental positions could be, or were, adjusted at thestage of a diplomatic conference. One state representative claimed thatif the governmental systemwas ‘developed’, most of the decisions weretaken at home and the instructions to the governmental delegationwere very detailed, which left little room for adjusting the positionunder NGO pressure at a conference. In general, the state representa-tives emphasised the importance of thorough consultation processeswith domestic NGOs prior to meetings such as the Rome Conference.Another state representative, however, explained that some delegationshardly received any instructions at all, and that even delegations fromWestern democracies came to the Rome Conference with only a fewpages of instructions. Moreover, the Rome Statute was a highlycomplicated and detailed text which left room for negotiation and


adjustment of practically all governmental positions. One of the NGOrepresentatives agreed that instructions were sometimes detailed, butstill emphasised that there was always room for adjusting positions.More importantly, the NGO representative thought, was that the role ofNGOs in these cases was more to prevent delegations from backing offfrom ‘good’ positions than to make them formulate particular posi-tions. Most European governments had positions which were sharedby the CICC, but there was a danger that these positions would be ‘soldout’ during the negotiations with governments which were not so keenon a strong ICC. If a government backed off from the official positionunder the pretext that the position had to be given up due to the ‘hard’positions of other governments, NGOs could try to prevent this or atleast make it known to the public what had happened.121

A related issue is the ‘complex mutual using’, as one of the inter-viewees described it, between governmental delegations and NGOs duringthe conference. People within the CICC, according to this description,would sometimes be told by a state representative that a certain delega-tion was secretly compromising its position. Since it could be sensitiveat times for one governmental delegation to criticise another, the CICCcould be used to do this job. The Coalition could then either use themedia to provoke public criticism (at one point, some of themembers ofthe Coalition published an article in the UK newspaper the Guardian) orphone the government in question in order to inform theminister whatwas happening. According to this NGO representative, therewere some-times significant variations in opinion between officials from foreignoffices and responsible ministers so that publicly stated positions couldbe undermined by the actual negotiators. Another aspect of the ‘mutualusing’ described by this interviewee was that strong NGO pressure on agovernment would sometimes leave more ‘political space’ for otherdelegations to publicly criticise its position. There were, however, alsosituationswhenNGOsweremisled by one delegation into believing thatanother was ‘selling out’ when in fact it was the first that was doing so.

One of the state representatives made a general remark that to someextent contradicted this, however. He suggested that NGOs loved to ‘tipoff’ people and think that they are ‘pulling the strings’, when in realitythey were not. In the view of this representative, NGOs were generallynot very good negotiators – at least they were far from having the skills

121 The lists with estimations of majorities for or against different positions which werecompiled by the Coalition might have been helpful to them in this regard.


of the more experienced diplomats. At the same time, however, headmitted that NGOs had more opportunity to walk around among thedelegates during the negotiations and spread the information that acertain delegation was planning to back out, and that they did contactgovernments ‘back home’when a delegationwasmaking compromises.He also described the CICC’s use of the ‘shame factor’ as an effectiveinstrument for putting pressure on states to ratify the Statute.

A matter that was mentioned by state representatives was that thetendency of NGOs to go for the ‘maximum position’, or formulate ‘wishlists’ sometimes caused irritation among governmental delegations,especially when they were subjected to heavy criticism for makingcompromises. In their view, compromises were necessary, and NGOsdid not always understand this. Such differences between governmentand NGO agendas and strategies were hardly surprising, as govern-ments had to balance different interests, while many NGOs werepromoting a single issue. Moreover, governmental delegations had toco-operate and make compromises with other delegations at futurenegotiations. One state representative said that he was happy to listento the NGOs and to take their views into account, but if he would later‘get blasted’ for achieving 80 per cent rather than 100 per cent, hewouldprefer not to bother. Another state representative pointed out that verycritical attitudes by NGOs could sometimes ruin negotiation packages,which also caused irritation. On the other hand, one of the NGO repre-sentatives mentioned that it was not a question of understanding or notunderstanding negotiations: it was simply the role of NGOs to advocatethe ‘maximum solution’.

A somewhat special phenomenon which seems to be spreading is thecontracting of NGO experts to perform negotiations on behalf of, espe-cially smaller, states. This also occurred during the Rome Conference, aswas confirmed by both state and NGO representatives. Examples ofstates represented by experts from NGOs or academia includedBosnia, Samoa, Sierra Leone and the Solomon Islands. One of the NGOrepresentatives, however, emphasised that it was an unfortunate errorby NGOs to suggest that states contracted NGOs to represent them:it was only a question of governments appointing individual experts,who might come from NGOs, academia or elsewhere. Another NGOrepresentative pointed out that it was often harder for the NGO dele-gates to co-operate with state representatives who were on such con-tracts, as they were less experienced and therefore more anxious not togive away too much information as compared to more experienced


diplomats. He also mentioned that it could sometimes create confusionwhen a person who had formerly attended negotiations in the capacityof an NGO representative turned up at the next conference as a staterepresentative.

Many governments invited individual NGO experts to take part intheir delegation as one of many members, in contrast to the situationdescribed above where the whole delegation was on contract. The staterepresentatives seemed to agree that the NGO members in these situa-tions functioned as representatives only of the state. At the same time,at least a couple of the state representatives were of the opinion thatthey continued to promote the NGO’s objectives even in this situation,and even if there were limits to what they could do. The normal proce-dure for appointing these persons seemed to be that the Foreign Officeidentified them personally; in other words it was not for the NGO toselect from among its representatives. It was pointed out by one of theNGO representatives interviewed that it was incorrect to say that suchan individual ‘represented’ the NGO in any sense at all. Many NGOsdecided never to ‘loan’ their staff to governments like this, as it mightcompromise the independence of their organisation. On the otherhand, some states never co-opted NGO experts on their delegations.

The internal strategy of the CICC

The CICC agreed on a number of basic points in order to maintain unitywithin the organisation. First, almost any NGO supporting the basicidea of an ICC could join the CICC. Secondly, the CICC did not submitdraft provisions or even specific statements, but worked only with thepromotion of a few principles forming a clear mandate, such as theprinciple of an independent prosecutor. On the other hand, NGOswhich joined the CICC were free to issue statements and speak ontheir own behalf.

Another important characteristic of the CICC was that it was verylarge and thus able to form specialised groupings on different issues(such as the Victims’ Working Group and theWomen’s Caucus), as wellas for different geographical regions. In other words, the CICC formedone enormous delegation which included specialised groups on a widerange of issues. It created twelve teams to cover negotiations on differ-ent parts of the Statute, and reports from these teams were madegenerally available.122

122 Pace and Thieroff, ‘Participation of Non-Governmental Organizations’, p. 394.


The role of different organisations

In the view of all the state representatives interviewed, the most import-ant factors helping an NGO to build a good reputation among govern-mental delegations were knowledge and expertise. One of the staterepresentatives made the observation that when organisations such asthe ICRC, Human Rights Watch, Amnesty International or Lawyers forHuman Rights produced material, it was not necessary to double-checkthe information provided. These organisations played an important rolethrough the distribution of their materials, which were generallyregarded as analytical and helpful. It was also mentioned by all the staterepresentatives that the CICC was very well run and respected. At thesame time one of them thought that the larger NGOswere probablymoreimportant for issues of substance in the Statute, while the main import-ance of the CICC was in pressurising for a Statute to be adopted at all.

As was described earlier the state representatives said that it created anegative attitude towards NGOs when they were unrealistic and ‘toocritical’ of governmental positions and compromises. The deliberatebreaking up of compromises was mentioned by a couple of state repre-sentatives and one described how leaders of the major NGOs at onepoint disassociated themselves from such behaviour by informinggovernments that their organisations had not supported it. In the view ofat least two of the state representatives interviewed, dramatic demonstra-tions or manifestations, as well as accusations of ‘treason’, decreased thepossibilities for NGOs to co-operate with governmental delegations. Oneof the NGO representatives also pointed to this kind of behaviour ascounter-productive.

One state representative regarded it as positive that a wide range ofNGOs were involved from an early stage of the preparatory process. Inhis view, it was partly due to the active role played by professionalorganisations, not belonging to the ‘normal sort of pressure grouppeople’, for example, that there was such a strong and complex influ-ence on the process from the non-governmental groupings. This influ-ence was ‘much, much wider’ than anything this state representativehad previously seen.

In what respect were the negotiations influenced?

Many different aspects of the ICC and the Statute were mentioned asexamples of NGO influence on the negotiations. Most intervieweesmentioned the role and independence of the prosecutor as a clear


example of NGO influence. In one state representative’s view, there wasa ‘tremendous opposition’ on the part of many states on this point.Several interviewees also mentioned the scope of the Court’s jurisdic-tion as another example of NGO influence.

Other examples thatwerementionedwere the questionofwhether theStatute should be extended to cover internal armed conflicts on more orless the same footing as international conflicts, the position of victims inproceedings before the Court and the turning down of the ‘a la carte’model of the Statute proposed by the ILC. The ICRC was send to haveplayed a very important role as regards the formulation of war crimes.

A couple of state representatives shared the view that one of themostimportant roles of NGOs was to pressurise for the creation of the Courtin general and to create an atmosphere which was favourable to this,especially during the preparatory process. It was also said that the CICCplayed, and continues to play, an important role in promoting stateratification of the Statute.123

8.7 Conclusions

There are several significant questions relating to the participation ofNGOs in UN world conferences. One is the rules for accreditation andwhether these have changed towards a more open or more restrictiveapproach as regards NGO participation. Another is how many NGOs, orhow many NGO representatives, have actually been accredited andparticipated. A third question concerns the forms of participation,i.e. whether NGOs have been allowed to speak, to distribute writtenmaterial, etc. The most difficult question is whether NGOs have actuallyhad an influence on the proceedings. That issue needs to be examinedfrom the perspective of those who have actually participated in the nego-tiations and, most of all, from that of those state representatives whodecided what positions to take and what texts to endorse or reject. Thenumber of conferences described above is too limited for any definiteconclusions to be drawn. Nevertheless, a brief examination of differ-ences and possible trends may be of interest.

123 It should be observed that the respondentswere not specifically asked about the role ofNGOs on the developments in relation to the ICC after the conclusion of the RomeConference. That this aspect is not mentioned should not therefore be understood asNGOs being insignificant in that regard.


As described above, the rules for accreditation of NGOs to UN confer-ences were standardised in 1996 with the adoption of the new arrange-ments for consultative status. Before that, the rules for accreditation weredecided upon individually for each conference. Until the 1990s, accredita-tion was in most cases available only to NGOs which were in consultativestatus with ECOSOC and which had specific competence in the subjectmatter of the conference.124 However, some of the conferences whichwere held before 1996 did represent a new and more generous attitudeon the part of states as regardsNGOparticipation. Thiswas particularly thecasewith theRioConference and theWorld Conference onHumanRights.The Rio Conference had rules for accreditation of NGOswhichwere not inconsultative status but ‘desired to participate’.125 The Conference onHuman Rights allowed for accreditation of NGOs which were not in con-sultative status but were active in the field of human rights and/or devel-opment.126 With the present arrangements for NGO participation in UNconferences, organisations in consultative status shall as a rule be accre-dited for participation in international conferences convened by theUnited Nations.127 In addition, NGOs without consultative status canapply for accreditation in all UN conferences in which they have a specialinterest or competence. The decisionwhether to grant accreditation or notis based on the background and competence of the particular NGO in thesubject areas of the conference.128 The rules for accreditation of NGOs toUN conferences in the 1990s thus demonstrated a trend towards wideraccess for NGOs, and the adoption in 1996 of the general ECOSOC rulesfor consultative arrangements andNGOparticipation in conferences trans-formed this practice into a permanent arrangement.

The Rio Conference, the World Conference on Human Rights and theWomen’s Conference probably set the record as regards the number ofNGO representatives participating in conferences convened by the UN inthe 1990s; 2,400 NGO representatives attended the Rio Conference, over

124 See table on criteria for NGO participation 1976–1996 in E/AC.70/1994/5/Add.1, GeneralReview of Current Arrangements, 7 June 1994, pp. 31–35.

125 These were the rules for accreditation to PrepCommeetings. Later, it was decided thatall NGOs which had participated in these meetings should be accredited to theconference. E/EC.70/1994/5, General Review of Arrangements for Consultation, 26 May 1994,p. 33.

126 A/CONF.157/8, Adoption of the Rules of Procedure, 14 June 1993, Rule 66 and PreparatoryCommittee decision PC.3/2, Participation of Representatives of Non-GovernmentalOrganizations at Regional Meetings, in A/CONF.157/PC/54, Report of the PreparatoryCommittee for the World Conference on Human Rights, 8 October 1992, p. 19.

127 E/RES/1996/31, para. 42. 128 Ibid., para. 45.


3,600 participated in theWorld Conference onHuman Rights and around5,000 attended theWomen’s Conference. All three conferences were alsocombined with large NGO fora, the largest being the Forum at Beijingwith between 25,000 and 30,000 participants, while the Forum arrangedin Rio gathered 17,000 and the NGO Forum in Vienna around 2,700.129

The NGO Forums illustrate an increased mobilisation among NGOs inrelation to state and IGO policies formulated at international meetings,but cannot provide much evidence as regards actual influence, since theNGO Forums are completely separated from the actual negotiations. Itmay even be the case that these events create a misleading image of UNconferences as being more NGO-friendly than they actually are. Some ofthe events have been criticised for their distance from the official meet-ings, the location of theNGO Forum in Beijingwas even regarded bymanyas a deliberate attempt to keepNGOsout of the officialmeetings.130On theother hand, the numbers of NGOs participating in the meetings, and theco-ordination of their attempts to influence the negotiations, would pos-sibly have been more limited had there been no NGO Forum at all.

It is clear that NGOs are, formally speaking, nothing more thanobservers at UN conferences. It is stated explicitly in the 1996 ECOSOCarrangements for consultation, as well as in the Rules of Procedure forthe participation of NGOs in some conferences, that participation ofNGOs does not entail a negotiating role.131 The two formal avenuesopen for NGOs trying to influence intergovernmental negotiations arethus to deliver oral interventions during meetings and to distributewritten statements. However, NGOs also use other methods of assertingan influence, and it seems that the most important methods are infor-mal. The most effective of those is probably direct lobbying with staterepresentatives by presenting views and proposals to them. It is crucialfor this kind of lobbying to take place at conferences that NGOs are

129 The United Nations, 1997, pp. 20, 56 and Korey, NGOs and the Universal Declaration ofHuman Rights, p. 288.

130 An NGO report from the conference states that the unilateral decision of the ChinaOrganising Committee to relocate the NGO Forum to Huairou ‘was seen widelyby NGOs and a number of governments as a political decision by the Chinesegovernment, indicative of a desire to isolate NGO participants both from the officialproceedings and from contactwith Chinese citizens’, Beyond Beijing: NGO Participation atthe UN FourthWorld Conference onWomen, report by Amnesty International et. al.,October1996, Chapter III. See also Marie Mansson, NGOs, ‘Women and Beijing’, The SwedishInstitute of International Affairs, Occasional Papers, Stockholm, 1996, pp. 9, 15, 33.

131 E/RES/1996/31, para. 50 and A/48/37, Report of the Preparatory Commission for the UnitedNations Conference on Human Settlements, 9 March 1993, annex, para. 9.


allowed to sit among and walk around governmental delegates duringthe negotiations (as opposed to being seated on a balcony or the like ornot being allowed in the room at all), even if NGOs also oftenmanage tokeep themselves informed of what is happening at closed meetings.Personal contacts are, of course, very important, and it is clear thatsome of the staff of the large and well-known NGOs maintain closecontacts with state representatives both during and in between meet-ings. Other important techniques used by NGOs to spread their messageto governmental delegations as well as the media and the public are thepublication ofmaterials, such as reports and analyses, and the issuing ofdaily newsletters. Some governmental delegations are small, and allstate representatives are busy during a conference, so governmentaldelegates often appreciate the analyses which specialised NGOs are ableto produce. Visual protests, such as demonstrations outsidemeetings orthe carrying out of manifestations of different kinds at the ConferenceCentre may be important for attracting media attention and creatingpublic opinion, but seem unpopular among state representatives. Someparts of the NGO sector, such as industrial organisations, in fact seldomor never seem to arrange these types of protest activity.132

A special feature of NGO participation in IGO conferences is that somestates appoint NGO experts to take part in or even form the governmentaldelegation. This occurred during the Rome Conference, as was describedearlier, and is also not uncommon at environmental meetings. TheFoundation for International Environmental Law and Development(FIELD), for example, has built up a relationship with small island states,which have been represented by experts from the organisation at differentmeetings. This can be regarded as anormal lawyer–client relationship, andfrom a traditional perspective on international law the NGO expertsbecome state representatives when they accept such an assignment. Atthe same time, however, NGOsmay choose to represent only states whichhave interests generally consistent with those of the NGO. Consideringthat the work performed by an NGOwhich represents a state may be on apro bono basis or on the basis of external financial support, the role of oneparticular NGO may be very important for a state.133 By actually takingpart in intergovernmental negotiations, the NGO has the possibility toexert a direct influence on the development of international law.

132 Giorgetti, ‘From Rio to Kyoto’, p. 240.133 Interview with Philippe Sands (founder of FIELD), 13 December 2000.


The question may be raised whether the rules for NGO participa-tion have changed as regards the form of such participation.Generally speaking, this has not been the case. The rules of procedureregarding NGO participation in UN conferences were basically thesame before 1996, when the rules on NGOs were adopted separatelyfor each conference, and after the new ECOSOC arrangements. NGOsmay designate observers to public meetings of the conference and itspreparatory process. As regards access to meetings, NGO observersmay sit in the plenaries and the main committees, but in workingGroup meetings only on the condition that the particular workingGroup admits it. NGOs may make oral statements upon the invitationof the presiding officer on matters in which they have special compe-tence. Usually, NGOs are allowed to deliver statements only inthe plenary sessions, but the rules do not hinder such statementsbeing delivered in the subsidiary bodies as well.134 Written state-ments are distributed by the conference secretariats to all delegationsin the languages in which they were written, but are usually notissued at the expense of the United States and not as official docu-ments.135 The World Conference on Human Rights was an exceptionin this respect, as statements from accredited NGOswere issued as UNdocuments.136

Naturally, the rules of procedure can be differently applied, particu-larly as regards oral statements, since these may be delivered only uponthe invitation of the chairperson. At the Rio Conference, only a fewNGOstatements were allowed at plenary meetings, normally only onestatement per session.137 The negotiations on the final documents wereto a large extent carried out in informal meetings to which NGOs were

134 E/RES/1996/31, para. 51 states that: ‘The non-governmental organizations accredited tothe international conference may be given, in accordance with established UnitedNations practice and at the discretion of the chairperson and the consent of the bodyconcerned, an opportunity to briefly address the preparatory committee and theconference in plenary meetings and their subsidiary bodies.’

135 E/RES/1996/31, para. 52, includes a rule on written NGO statements during thepreparatory process, but does not mention the conferences as such.

136 The Rules of Procedure, as opposed to the other conferences, did not include theinformation that statements would not be issued as official documents, see A/CONF.157/8, Adoption of the Rules of Procedure, 14 June 1993, Rule 66. See also NGOstatements, e.g. A/CONF.157/PC/79, 20 April 1993, presented by the American Societyof International Law to the Preparatory Committee.

137 At most plenary sessions, only one NGO was allowed to deliver a statement. Duringtwo sessions, two or three NGO statements were delivered. A/CONF.151/26/Rev.1,vol. II (Proceedings of the Conference), pp. 9–12.


not admitted.138 This was also the case with the Rome Conference,where NGOs were allowed to sit in all formal meetings but one. InKyoto, many meetings were closed.

The final documents of major IGO conferences are normally draftedbefore the conference, albeit subjected to many changes during theconference itself. It is therefore important for NGOs to participate inthe preparatory meetings which seek to influence the final documents.It is probably even better – if possible – for NGOs to take part in meet-ings on the national plane before the governments’ positions have beenfixed. The participation of NGOs in preparatory processes at UN confer-ences has been fairly strong, although not as extensive as in the con-ferences themselves.139 A high number of NGOs participated in thefour meetings of the UN PrepCom for the Rio Conference: over 160NGOs were represented at PrepCom II, and 350 NGOs participated inPrepCom III.140 At the regional meetings that preceded the HumanRights Conference in Vienna, NGOs significantly outnumbered states.The regional meeting for Latin America, for instance, was attended bydelegations from twenty-three Latin American and a similar numberof observer states, while the number of NGOs represented was over160.141 At the regional meetings for Asia and Africa, the situation wassimilar.142 During all these meetings, NGOs made a large number of oralstatements.143 Written NGO statements were delivered as official UNdocuments and were on the table of the meetings under the respectiveagenda item.144 The number of NGOs participating in the preparatorymeetings for the Rome Conference was lower, probably because ofthe more specialised topic. As already mentioned, some fifty NGOs

138 The above figures and information are presented in Hagerhall, ‘The Evolving Role ofNGOs’, pp. 69–71.

139 Over 700 NGOs participated in the 39th session of the Commission on the Status ofWomen,which acted as a preparatory body for theWomen’s Conference, E/CN.6/1995/14, p. 69 and annex II–III.

140 A/46/48, Report of the Preparatory Committee for the United Nations Conference onEnvironment and Development, 1991, paras. 9–10 and Hagerhall, ‘The Evolving Roleof NGOs’, p. 71.

141 A/CONF157/LACRM/15, A/CONF157/PC/58, Report of the Regional Meeting for Latin Americaand the Caribbean of the World Conference on Human Rights, 11 February 1993, para. 6.

142 A/CONF.157/AFRM/14, A/CONF157/PC/57, Report of the Regional Meeting for Africa, 24November 1992, para. 4 and A/CONF.157/ASRM/8,A/CONF.157/PC/59, Report of theRegional Meeting for Asia, 7 April 1993, para. 6.

143 See, e.g., the report on the Latin American meeting, paras. 25–26.144 See, e.g., written statement by Amnesty International, A/CONF157/AFRM/8,mentioned

in the report on the African meeting, para. 37.


were represented at PrepCom IV, about eighty at PrepCom V andaround sixty at PrepCom VI.

An important observation concerning the NGO participation in themajor UN world conferences of the 1990s is that it functioned as anengine for greater NGO participation in the regular work of ECOSOCsubsidiary bodies. Following several of the conferences, ECOSOCadopted ad hoc measures to facilitate NGO participation in the follow-upprocesses, while encouraging the organisations to apply for consul-tative status. By a decision in 1997, for instance, ECOSOC invited thoseNGOs which were accredited to the Women’s Conference, the SocialSummit or the Conference on Population and Development to attendthe sessions of the relevant functional commissions of ECOSOC, pro-vided that they had begun the process of applying for consultativestatus.145 The Rio Conference led to another expansion of NGO partici-pation in ECOSOC bodies through the establishment of the Commissionon Sustainable Development as a follow-up to the Conference. All NGOswhich were accredited to participate in the work of PrepCom IV for theRio Conference could apply for and should be granted Roster status withthe Commission.146

The number of conferences discussed above is too limited to provide abasis for any well-founded conclusions regarding differences in states’attitudes towards NGOs at intergovernmental conferences. Nevertheless,it is probable that states would be unwilling to provide access forNGOs to conferences which concerned important financial interestsor politically highly sensitive issues. There is some support for thishypothesis in the study of conferences presented here. As was notedin the introduction to this chapter, before 2004 NGO observers were notgenerally allowed at the Conference on Disarmament, a negotiatingprocess involving both considerable financial interests and politicallysensitive issues. Environmental agreements may also put commercialinterests at stake. The FCCC, however, includes surprisingly generousrules for participation of NGOs in the Conference of the Parties. Manymeetings in Kyoto, on the other hand, were closed to NGOs. The RioConference demonstrated an early example of impressive NGO involve-ment, but was not convened with the aim of adopting a legally binding

145 ECOSOC Decision 1997/298. See also E/1998/43,Work of the Non-GovernmentalOrganizations Section of the Secretariat, 8 May 1998, para. 6.

146 ECOSOC Decision 1993/215, Procedural Arrangements for the Commission on SustainableDevelopment, para. 2(c), in E/1993/INF/2, 4 March 1993.


environmental instrument. The Vienna Conference, for its part,involved issues which were more political than financial and did nothave the objective of adopting a treaty and the attitude towards NGOparticipation was permissive from the outset, as demonstrated by theresolution by which the General Assembly decided to convene it.


9 Agreements with states andintergovernmental organisations

9.1 International agreements and non-state actors

It has become a common phenomenon that IGOs contract NGOs forhumanitarian operations.1 As will be described, the ICRC has also con-cluded headquarters agreements with several states. How should suchagreements be categorised, and what law governs them? Is it possiblefor non-state entities to conclude agreements with states or IGOs underinternational law?2 These questions will be briefly discussed in order toprovide a basis for an examination of some more concrete examples ofagreements.

The Vienna Convention on the Law of Treaties of 1969 (VCLT 1969)defines ‘treaty’ for the purposes of the Convention as:

an international agreement concluded between States in written form andgoverned by international law, whether embodied in a single instrument or intwo or more related instruments and whatever its particular designation.3

At first sight, the Convention, which is generally regarded as reflectiveof customary international law in most parts, seems to exclude thepossibility that entities other than states can conclude treaties.4

However, it is made clear in Article 3 of the Convention that:

1 Section 9.3.2 In order to avoid confusion, I will use the neutral term ‘agreement’ when one ormore ofthe parties is a non-state entity.

3 Article 2(1) a.4 Restatement of the Law Third: The Foreign Relations Law of the United States, The American LawInstitute, 1987, vol. I, p. 145 (hereafter ‘Restatement (Third)’); Sir Robert Jennings andSir ArthurWatts (eds.), Oppenheim’s International Law, I, 9th edn., London: Longman, 1996,p. 1199; Anthony Aust,Modern Treaty Law and Practice, Cambridge University Press, 2000,p. 14; Iain Brownlie, Principles of Public International Law, 5th edn., Oxford University Press,1998, p. 608. Klabbers states that ‘it would appear that at least the definition of treaty has

487

The fact that the present Convention does not apply to international agree-ments concluded between States and other subjects of international law orbetween such other subjects of international law, or to international agree-ments not in written form, shall not affect:

a. the legal force of such agreements;b. the application to them of any of the rules set forth in the present

Convention to which they would be subject under international lawindependently of the Convention.

In its commentary on the Convention, the ILC explained that the pri-mary purpose of the narrow scope of the Convention was to make itclear that all the following articles were formulated with particularreference to treaties concluded between states. It stated that the narrowdefinition of ‘treaty’:

although expressly limited to the purposes of the present articles, might byitself give the impression that international agreements between a State and aninternational organization or other subjects of international law, or betweentwo international organizations, or between any other two non-Statal subjectsof international law, are outside the purview of the law of treaties. As suchinternational agreements are now frequent . . . the Commission considered itdesirable to make an express reservation in the present article regarding theirlegal force and the possible relevance to themof certain of the rules expressed inthe present articles.5

Both the Convention and the ILC commentary thus admitted the possi-bility that subjects of international law other than states couldenter into treaties. The question that arises is what kind of entitiesbelong to this category. With the adoption of the Vienna Conventionon the Law of Treaties between States and International Organizationsor between International Organizations (VCLT 1986) it was confirmedthat IGOs have the capacity to enter into treaties in accordance with theprovisions of their constituent instruments.6 The Convention, the legal

started to lead an existence of its own’, Jan Klabbers, The Concept of Treaty in International Law,The Hague: Kluwer Law International, 1996, p. 41. In the case of Qatar v. Bahrain (Judgementof 1 July 1994, Jurisdiction and Admissibility, para. 23), the ICJ referred to VCLT 1969 in itsdiscussion of whether the agreement between the parties, who had not ratified the ViennaConvention, was to be considered a ‘treaty’. See also Dissenting Opinion of Judge Oda, para. 13and Klabbers’ comment on this, The Concept of Treaty in International Law, p. 41.

5 YILC 1966, II, p. 190.6 The text of the treaty is reproduced in International Legal Materials, 25 (1986), pp. 543–592.‘International organization’ is understood in the treaty as an IGO.


regime of which is in large parts a replication of VCLT 1969, has not yet(as of November 2004) entered into force.7

As with VCLT 1969, the VCLT 1986 includes a provision stating thatthe fact that the Convention does not apply to other agreements thanthe ones defined by it shall not affect the legal force of such agree-ments.8 The drafting of this provision gave the ILC an opportunity todiscuss the issue of the possibility that entities other than states andIGOs might enter into agreements under international law:

It is pretty well beyond dispute that the situation under international law ofcertain international agreements not within the scope of the present articlesneeds to be safeguarded by a provision on the lines of article 3 of the ViennaConvention [of 1969]. Suffice it to point out that it is not unusual for an inter-national agreement to be concluded between an international organization andan entity other than a State or than an international organization. Referencemay be made here . . . to agreements concluded between the Holy See andinternational organizations. Similarly, there can be little doubt that agreementsconcluded between the International Committee of the Red Cross and an inter-national organization . . . are indeed governed by international law. The devel-opment of world humanitarian law and its extension for the benefit of entitieswhich have not yet been constituted as States will provide further examples ofthis kind, and there will even be agreements concluded between one or moreinternational organizations, one or more States and one or more entities whichare neither States nor international organizations.9

The ILC thus stopped referring to ‘subjects of international law’ for amore open attitude to possible developments inclusive of non-stateactors. The Commission also pointed to the actual existence of agree-ments concluded by entities other than states under international law,although the concept of ‘treaty’ was not used to refer to such instru-ments. In the discussion below on agreements concluded by non-stateentities the same languagewill be used, as ‘treaty’ is normally understoodas an instrument regulating the relations between states and/or IGOs.

In spite of the position held by the ILC, it is sometimes asserted thatentities other than the recognised subjects cannot enter into agree-ments under international law. For instance, it is stated in Oppenheim’s

7 United Nations Treaty Collection database accessible online at http://untreaty.un.org, asof 8 November 2004. For commentaries on the Convention, see Giorgio Gaja, ‘A ‘‘New’’Vienna Convention on Treaties Between States and International Organizations orBetween International Organizations: A Critical Commentary, 58 BYIL (1987),pp. 253–269.

8 Article 3 in both Conventions. 9 YILC 1981, I, Part 2, p. 125.

AGREEMENTS WITH STATES AND INTERGOVERNMENTAL ORGAN I SAT IONS 489

International Law that ‘where the agreement is concluded between par-ties who have no international legal personality it will not be governedby international law’.10 Anthony Aust adopts a similar view in his bookModern Treaty Law and Practice, as does Peter Malanczuk in an articleon agreements concluded between MNEs and states.11 The question ofnon-state actors as parties to agreements under international law hasperhaps been discussed mainly in relation to such ‘internationalisedcontracts’ as are sometimes used when a state allows a private companyto explore and exploit natural resources on its territory. In order to safe-guard the interest of the company to place the contract outside thereach of the contracting state’s national law, these agreements referto international law in their ‘applicable law clause’, and disputes areoften subjected to arbitration.12 The doctrinal views on internationa-lised contracts are varied. One view is that such agreements are indeedconcluded under and governed by international law. The Restatementaccepts the validity of clauses referring to international law, but doesnot regard the contracts as international agreements.13 Malanczukholds that – although this does not solve the problem from the view-point of the company – one could at most argue that international lawmight be applied by way of analogy, on the basis of the will of theparties, while the contract remains subject to the national law of thehost state.14 On the basis of his review of the decisions in the Libyan Oil

10 Oppenheim’s International Law, I, p. 1200.11 Aust states: ‘A treaty can be concludedbetween a state and another subject of international

law, in particular an international organisation, or between international organisations,but this is outside the scope of the Convention, and of this book.’ Aust,Modern Treaty Lawand Practice, p. 15. Malanczuk’s position is that: ‘it is also clear that bilateral or multilateraltreaties under public international law can only be concluded among the subjects ofinternational law, such as States, international organizations or other recognized subjectsof international law.’ ‘[S]o-called State contracts or ‘‘internationalised contracts’’ are nottreaties in the sense of international law and cannot elevate them [i.e. multinationalenterprises] to ‘‘partial subjects of international law’’.’ Peter Malanczuk, ‘MultinationalEnterprises and Treaty-Making – A Contribution to the Discussion on Non-State Actorsand the ‘‘Subjects’’ of International Law’, in Vera Gowlland-Debbas (ed.), MultilateralTreaty-Making, The Hague. Kluwer Law International, 2000, pp. 57, 71.

12 In the case of Anglo-Iranian Oil Company, the ICJ found that it lacked jurisdiction in thedispute concerning a contract concluded between Iran and a company incorporated inthe United Kingdom, the Anglo-Iranian Oil Company. (At the time, the parties were theImperial Government of Persia and the Anglo-Persian Oil Company Ltd.) ICJ Reports1952, p. 93. See also Klabbers, The Concept of Treaty in International Law, p. 49.

13 This position is described in the Restatement as an intermediate view. Restatement(Third), II, p. 214.

14 Malanczuk, ‘Multinational Enterprises and Treaty-Making’, p. 60.


Arbitrations, Christopher Greenwoood concluded, inter alia, that a con-tract between a state and a foreign company might be delocalised andthat the legal system by which the contract is to be governed might bepublic international law.15 The three concessions which were the sub-ject of these cases all included an applicable law clause stating that theyshould be governed by and interpreted in accordance with principles ofnational law ‘common to the principles of international law and in theabsence of such common principles then by and in accordance with thegeneral principles of law’.16

A relatively new area where contracts can be concluded by privateactors under international law is the law of the sea. According to Article21 of annex III to the UN Convention on the Law of the Sea (UNCLOS),contracts between the International Seabed Authority and corporationsthat regulate the conditions of prospecting, exploration and exploita-tion of the international seabed area beyond the limits of nationaljurisdiction ‘shall be governed by the terms of the contract, the rules,regulations and procedures of the Authority, Part XI and other rules of

international law not incompatible with this Convention’.17 Such contractsmay be concluded by ‘natural or juridical persons which possess thenationality of States Parties’, as provided by UNCLOS Article 153, para.2(b). Disputes concerning the interpretation or application of a contractare settled by the Seabed Disputes Chamber, or – at the request of anyparty to the dispute – through binding commercial arbitration.18

The employment contracts which are concluded between IGOs andtheir personnel may be interesting for comparison with agreementsconcluded between IGOs and NGOs. Such contracts, which often lackan applicable law clause, are generally regarded as governed by theorganisation’s own regulations supplemented by general principles oflaw, rather than by domestic law, and disputes are often settled ininternational administrative tribunals. According to Van Hecke, it isgenerally accepted regarding all contracts concluded by IGOs that theymay be subject to international rather than national law. The mainarguments for this theory are that an IGO is a subject of international

15 Christopher Greenwood, ‘The Libyan Oil Arbitrations’, 53 BYIL (1983), p. 79. The sameconclusion is reached by Kaj Hober, Extinctive Prescription and Applicable Law in InterstateArbitration, Uppsala: Iustus Forlag, 2001, pp. 93, 113 (see also below).

16 Greenwood, ‘The Libyan Oil Arbitrations’, p. 28.17 United Nations Convention on the Law of the Sea (1982), annex III, Basic Conditions of

Prospecting, Exploration and Exploitation (emphasis added).18 Articles 187(c)( i), 188(2)(a).


law as well as of its internal law, and that it is desirable to safeguard theindependent and international character of IGOs’ activity.19

In sum, there is some disagreement as to whether agreements, oneparty to which is a non-state entity, can be placed directly under inter-national law. Some, such as the ILC, point to the actual existence of suchagreements, while others argue that although there may be agreementsthat refer to international law, such instruments cannot in reality begoverned by the international legal system – or, at most, by way ofanalogy (which leaves disputes on the actual contract to be determinedunder a national legal system). In my view, it should first be observedthat the concepts of ‘subjects of international law’ and ‘internationallegal personality’ cannot provide much guidance for the determinationof which actors can conclude agreements under international law. Ashas been demonstrated earlier, these concepts are rather ambiguous intheir character and are sometimes defined in a circular manner.20 It hasalso been stated earlier as a basic standpoint for a study on the legalstatus of NGOs that states are assumed to be able to confer upon non-state entities the rights and capacities they deemuseful.21 The inductivemethod used in the present study thus suggests, quite simply, that ifagreements with non-state entities are purposely placed under interna-tional law by states or IGOs, these agreements are, at least in principle,actually governed by international law. It is therefore the intention ofthe parties, as expressed in actual agreements, which should be at thecentre of the investigation.22

19 Henry G. Schermers and Niels M. Blokker, International Institutional Law. Unity withinDiversity, 3rd rev. edn., Dordrecht: Martinus Nijhoff, 1999, pp. 362, 434–439; GeorgesVan Hecke, Contracts between International Organizations and Private Law Persons, EPIL, 1,Amsterdam: North-Holland, 1992, p. 813. Sands and Klein observe that the problemwith subjecting contracts between IGOs and private actors to national legislation ‘is lesssignificant than for contract between two states, where one party to the contract mayhave a direct interest in unilaterally modifying its terms by way of a unilateral act.States are less likely to engage in such acts to benefit the private persons who arenormally the parties to private contracts with organisations.’ Philippe Sands andPierre Klein, Bowett’s Law of International Institutions, 5th edn., London: Sweet & Maxwell,2001, p. 463.

20 Brownlie points to the circularity of this line of argument when he observes that thecommon indicia referred to for a subject of international law depend on the existence ofa legal person, Principles of Public International Law, pp. 57, 609. See also section 2.3, 3.2.

21 Or, as expressed in the Restatement ‘private juridical entities can have any status,capacity, rights, or duties given them by international law or agreement’, Restatement(Third), 1987, I, p. 70. See also section 3.2.

22 In the Case of Serbian Loans, the PCIJ stated, however, that ‘Any contract which is not acontract between States in their capacity as subjects of international law is based on the


The ILC has also emphasised the importance of the intention of theparties to create an agreement under international law in relation to thedetermination of a treaty:

The twomain elements in the present definition are (i) ‘intended to be governedby international law’ . . . As to the first element, the Commission felt . . . thatthe element of subjection to international law is so essential a part of aninternational agreement that it should be expressly mentioned in thedefinition . . . At any rate, the Commission was clear that it ought to confinethe notion of an ‘international agreement’ for the purposes of the law of treatiesto one the whole formation and execution of which (as well as the obligation toexecute) is governed by international law.23

This emphasis on intent as the decisive factor also seems to be estab-lished in the customary international law of treaties.24 Moreover, thequestion of the intention of the parties seems to explain the meaningof the reference to ‘subjects of international law’ in the ViennaConventions and the ILC reports. In its draft articles to VCLT 1986, theILC discussed the question whether some agreements concluded byIGOs could be of an ‘internal’ nature, i.e. governed by rules peculiar tothe organisation in question. It stated that:

If an agreement is concluded by organizations with recognized capacity to enterinto agreements under international law and if it is not by virtue of its purposeand terms of implementation placed under a specific legal system (that of a stateor given organization), itmay be assumed that the parties to the agreement intended itto be governed by international law.25

Thus, the fact that the contracting parties are recognised internationallegal subjects seems to mean that there is a presumption that theyintended the agreement to be ‘governed by international law’. Theagreement itself or circumstances surrounding its conclusionmay over-come this presumption. It is suggested in Oppenheim’s International Law

that, when the parties are subjects of international law, the intention tocreate international legal rights and obligations between them ‘will

municipal law of some country.’ PCIJ Series A, No. 20, p. 41. This statement has beencriticised by many writers, see Greenwood, ‘The Libyan Oil Arbitrations’, p. 42.

23 YILC 1962, II, p. 32 (emphasis in original).24 Restatement (Third), I, p. 145 (e contrario); Aust,Modern Treaty Law and Practice, pp. 10–11.

Klabbers observes that the element of intent is useful in a twofold manner – on the onehand, for distinguishing binding agreements fromnon-binding instruments and on theother for the distinction between ‘those agreements properly governed by interna-tional law, and those governed by the domestic laws of one or another state’, with theexception of some cases. Klabbers, The Concept of Treaty in International Law, pp. 63–64.

25 YILC 1981, I, Part 2, p. 122 (emphasis added).


need to be determined in the light of all the circumstances of each case’,such as the registration of an agreement with the UN or the statementsmade by governments before the adoption of the instrument.26

The hypothesis that it is the intention of the parties that determineswhich law is to govern an agreement is supported by the principle ofparty autonomy. Christopher Greenwood concluded after his examina-tion of the Libyan Oil Arbitrations, mentioned earlier, that a contractbetween a state and a foreign company may be delocalised and that thelegal system by which the contract is to be governed may be publicinternational law.27 The same conclusion is reached by Kaj Hober, whoobserves that the doctrine of party autonomy allows the parties to chooseany set of rules – whether they be characterised as law or somethingelse – to serve as the basis for solving disputes. Hober points out that:

Not only do the parties have the discretion to choose any law, or rules, theywish, but they may also exclude the application of any national law by referring,for example, to the general principles of law . . . It follows from the foregoing,that the parties are themasters over the law, or rules to be applied and also overthe public policy of the law they may have chosen.28

It seems that the principle of party autonomy provides contractingparties with practically unlimited freedom in choosing the applicablelaw of the contract, including general principles of law.29

In order to determine the intention of the parties, it is necessary toexamine concrete agreements. When one of the parties is not a recog-nised subject of international law, there is no presumption that inter-national law is the applicable law, so the terms of the agreement areeven more important. A few examples of agreements entered into byNGOs with states and IGOs will now be described.

9.2 Agreements between states and NGOs

As has been described in chapter 2, the ICRC is generally regardedas having a unique status in international law for an organisation

26 Oppenheim’s International Law, I, p. 1202.27 Greenwood, ‘The Libyan Oil Arbitrations’, p. 79.28 Kaj Hober, Extinctive Prescription and Applicable Law in Interstate Arbitration, Uppsala: Iustus

Forlag, 2001, pp. 93, 113 (emphasis in original).29 See also P.M. North and J. J. Fawcett, Private International Law, 12th edn., London:

Butterworths, 1992, pp. 476–486 and J. G. Collier, Conflict of Laws, 2nd edn., CambridgeUniversity Press, 1994, pp. 185–196.


established under national law and by private initiative. The ICRCcannot therefore serve as a basis for general conclusions about allNGOs. It should also be observed that the ICRC, as has been mentioned,does not consider itself to be anNGO in the ordinary sense of the term.30

The ICRC is, however, interesting as an illustration of a status that can,at least potentially, be acquired by other NGOs.

Because of the ICRC’s special role in international humanitarian lawand its development, one might assume that it would itself be a partyto the Geneva Conventions of 1949 and its Additional Protocols. Thisis, however, not the case, although the ICRC does enter into agree-ments with states. One agreement of main interest here is theAgreement concluded in 1993 between the Swiss Federal Council andthe ICRC to determine its legal status in Switzerland.31 In Article 1 ofthe Agreement, the Swiss Federal Council recognises the internationaljuridical personality of the ICRC. In Article 2, the Federal Council‘guarantees the ICRC independence and freedom of action’. Articles 3and 4 grant the ICRC inviolability of premises and archives, whileArticle 5 guarantees the ICRC immunity from legal process and execu-tion, with certain exceptions. The staff of the ICRC is also grantedprivileges and immunities under the Agreement.32 The Committee hasa favourable fiscal position in Switzerland according to Article 5, whichexempts the ICRC from direct federal, cantonal and communal taxation.In other respects, such as customs and communications, the ICRC isgranted the same status as IGOs.33 The Agreement refers to theInternational Telecommunication Convention of 1982 in the latterrespect.

The ‘non-responsibility’ of Switzerland is regulated in a specialsection of the Agreement. Article 20 states that ‘Switzerland shallnot incur, by reason of the activity of the ICRC on its territory anyinternational responsibility for acts or omissions of the ICRC orits staff ’.

As for settlement of disputes, the Agreement provides that any diver-gence of opinion concerning its application or interpretation may besubmitted by either party to an arbitral tribunal consisting of threemembers, of which each party appoints one and the two appointed

30 See section 2.4.31 Agreement between the International Committee of the Red Cross and the Swiss Federal Council to

Determine the Legal Status of the Committee in Switzerland, 19 March 1993, reprinted in theInternational Review of the Red Cross, No. 293, pp. 152–160.

32 Articles 11–17. 33 Articles 7, 9.


select the chairperson.34 The arbitration award is binding on the par-ties.35 The Agreement does not include any provision on applicable law.

According to the ICRC’s Annual Report, the organisation has also con-cluded headquarters agreements with seventy-four states.36 The ICRCconsiders its headquarters agreements to be international treaties.37

The Agreement between the ICRC and the Federal Republic ofYugoslavia, for example, presents some differences in relation to theagreement concluded with Switzerland.38 For instance, the Agreementdoes not recognise the international legal personality of the ICRC, butonly its ‘juridical personality’. On the other hand, it is stated that ‘TheICRC shall be recognized the status given to intergovernmental organi-zations’, and the ICRC is granted immunity, inviolability of premisesand exemption from taxes and customs duties. Disputes arising fromthe Agreement shall be settled by negotiations, or – if negotiations fail –by a court of arbitration, whose decision shall be final. The headquartersagreement does not have an applicable law clause.

9.3 Agreements between IGOs and NGOs

Introduction

The collaboration between NGOs and UN agencies active in humanitar-ian emergencies, such as the WFP and the UNHCR, has increased dra-matically.39 This collaboration between IGOs and NGOs needs to beregulated in agreements of varying normative status, such as MOUs,letters of understanding, partnership agreements, etc.40 The differentkinds of agreements which have been concluded between IGOs and

34 Articles 22(1–3). 35 Article 22(7).36 ICRC Annual Report 2003, p. 21.37 Letter from the ICRC legal division, 22 June 2001, on file with the author.38 Agreement between the International Committee of the Red Cross and the Federal Republic of

Yugoslavia, 14 June 1994, on file with the author.39 Leon Gordenker and Thomas G. Weiss, ‘Devolving Responsibilities: A Framework for

Analysing NGOs and Services’, in Thomas G. Weiss (ed.), Beyond UN Subcontracting: Task-Sharing with Regional Security Arrangements and Service-Providing NGOs, New York:Macmillan/St Martin’s Press, 1998, p. 31 and Andrew S. Natsios, ‘NGOs and the UNSystem in Complex Humanitarian Emergencies: Conflict or Cooperation?’, in ThomasG. Weiss and Leon Gordenker (eds.), NGOs, the UN, and Global Governance, London: LynneRienner, 1996, p. 74.

40 During 1999, the UN Office for Projects Services began facilitating ‘partnerships’among, inter alia, UN bodies and NGOs and new contracting mechanisms for theprocurement of goods and services through co-operation with NGOs were created,A/55/1, Report of the Secretary-General on the Work of the Organization, 2000, para. 334.


NGOs will be examined below after a general examination of IGO–NGOco-operation. It should be observed that the agreements examined wereprovided in 2001. Some of themmight later have been replaced by othercontracts. This would not, however, deprive them of their relevance asexamples of agreements which are, or have been, in actual use.

The increase in IGO–NGO operational collaboration is confirmed indocumentation from WFP, where it is also stated that NGOs are vital asimplementing partners of WFP in relief situations for reasons of scope,scale and effectiveness.41 In some cases, WFP needs to turn to NGOs forcollaboration because of the weaknesses of government authorities –e.g. in situations of major disasters.42 About 80 per cent of WFP reliefoperations involve NGOs as implementing partners, and about 16 percent of the operations are carried out by NGOs alone.43

Since 1995, WFP has used ‘global MOUs’ for outlining partnershipswith major international NGOs. These MOUs, which are of a standingcharacter, are concluded with NGOs at headquarters level to set a gen-eral framework for collaboration at the global level.44 The WFP hasMOUs with some fifteen NGOs, including Catholic Relief Services, theLutheran World Federation, the Danish Refugee Council and Save theChildren (US).45 The content of suchMOUs will be examined below.46 Inaddition to global MOUs, WFP signs local agreements with NGOs speci-fying arrangements for a specific operation;47 in 2001, WFP had localagreements with over 1,100 NGOs.48

41 Document WFP/EB.1/99/3-A, Partnership with NGOs, 21 December 1998, para. 1 andWFP/EB.A/2001/4-B, WFP Working with NGOs: A Framework for Partnership, 17 April 2001,para. 9.

42 WFP/EB.A/2001/4-B, WFP Working with NGOs: A Framework for Partnership, 17 April 2001,para 2. For example, in the 1997 Country Strategy Outline for Honduras, it is stated that ‘Theparticipation of experiencedNGOs often compensated forweak implementation by thepublic sector, and increased the coverage and efficiency of activities, and care for infantpopulations’, WFP/EB.2R/97/3/Add. 4, Country Strategy Outline for Honduras, para. 52.

43 WFP/EB.A/2001/4-B, WFP Working with NGOs: A Framework for Partnership, 17 April 2001,para. 3.

44 WFP/EB.1/2000/5/2, Thematic Evaluation of WFP–NGO Partnerships, 20 December 1999,para. 13.

45 WFP/EB.A/2000/3-A, Annual Report of the Executive Director: 1999, 26 April 2000, para. 57,WFP/EB.3/99/INF/8, List of Memoranda of Understanding and Agreements signed by WFP andOther Organizations/Entities, 1 October 1999 and the WFP website accessible online atwww.wfp.org, as of 30 October 2004 (section ‘WFP’s Partners’).

46 Section 9.3.47 WFP/EB.1/2000/5/2, Thematic Evaluation ofWFP–NGOPartnerships, 20December 1999, para. 13.48 WFP/EB.A/2002/4, Annual Report of the Executive Director: 2001 (Executive Board version),

para. 96.


UNHCR has worked closely with NGOs since its foundation in 1951.During 2003, the UNHCR funded 538 national and international NGOimplementing partners through project agreements totalling approxi-mately 19 per cent of its annual budget.49 UNHCR has also adopted aFramework Agreement for Operational Partnership, which is a globalagreement to be concluded by international NGOs at the headquarterslevel.50

NGOs are also of increased importance to the World Bank. The Bank,however, seldom funds NGOs directly. Themost commonway for an NGOto receive project funds is instead by working as a contractor to theborrowing government. NGOs are sometimes contracted directly by theWorld Bank – for example, to assist in project design or implementation.51

Of all the projects approved by the World Bank in 1999, involvement ofNGOs and other civil society organisations had increased to 52 per cent, upfrom 20 per cent in 1989.52 NGOs are mostly involved at the planning,implementation and operation, and maintenance stages of projects.53

Memoranda of understanding and framework agreements

A ‘memorandum’ is, according to Black’s Law Dictionary: ‘An informalrecord, note or instrument embodying something that the partiesdesire to fix in memory by the aid of written evidence, or that is toserve as the basis of a future formal contract or deed.’54 Thus, in generallegal terms, a ‘memorandum’ refers to a non-binding instrument.

Aust analyses the difference between treaties and MOUs concludedbetween states in some detail and his analysis can help to elucidate thecharacter of agreements concluded between IGOs and NGOs. In Aust’sview, as a general rule, MOUs are non-binding instruments.55 As the

49 UNHCR, Global Report 2003, p. 103.50 Letter from the UNHCR NGO Coordinator, 12 January 2001, on file with the author.51 Working Together: The World Bank’s Partnership with Civil Society, Washington, DC: World

Bank, 2000, p. 30.52 World Bank–Civil Society Relations, Fiscal 1999 Progress Report, August 2000, p. 2. The

expression ‘civil society organisations’ (CSOs) include, for the purposes of the report,‘NGOs, community-level and women’s groups, churches, and labour unions, amongothers’. Ibid, p. 1.

53 Ibid., p. 3. In almost 30 per cent ofWorld Bank projects which involve co-operationwithNGOs, these organisations have also participated in the identification of the project.

54 Black’s Law Dictionary, Abridged 6th edn., St Paul, MN:West Publishing Co., 1991, p. 680.55 Aust,Modern Treaty Law and Practice, pp. 17–18, 26. See, however, Klabbers, who suggests

that when an agreement is referred to as a ‘memorandum of understanding’, thisprovides little evidence to suggest that the negotiators actually contemplated whetherthe agreement was to be legally binding or not. Klabbers, The Concept of Treaty in


designation of an instrument may be misleading, Aust recommendsthat the instrument is classified by means of an analysis of the circum-stances under which it was concluded, whether it has been registeredwith the United Nations, as well as an examination of its provisions on anumber of points.56 In Aust’s opinion, the registration of an instrumentwith the United Nations pursuant to Article 102 of the UN Charterprovides evidence that the instrument is a treaty.57 As regards thecontent of the instruments, Aust observes that a dispute settlementclause according to which disputes are to be referred to compulsoryinternational judicial process is hardly consistent with an intention toconclude a non-legally binding instrument. Typically, MOUs providethat disputes are to be settled by negotiation between the parties andnot referred to any third party.58

Another point which may be of interest in the context of MOUsconcluded between IGOs and NGOs is the terminology of the agree-ment. Aust points out that an intention to conclude a legally bindinginstrument is often indicated by the employment of imperative terms,such as ‘shall’, ‘agree’, ‘undertake’, ‘rights’, ‘obligations’ and ‘enter intoforce’. The text of instruments which are not intended to be legallybinding, by contrast, often includes terms such as ‘will’ and ‘come intoeffect’.

As was noted above, WFP concludes MOUs with NGOs on both theglobal and local level. In its own words, the standard global MOU usedby WFP ‘sets the framework for achieving the overall goal of WFP andNGO cooperation’, and is intended to improve the emergencyresponse and the implementation capacity of both WFP and the part-ner NGO. It applies to different kinds of operational work, such asemergency operations and development programmes.59 The MOUestablishes ‘basic principles of collaboration’, but does not mentionnational or international law, or refer to treaties or other legal rules. Asregards the division of responsibilities, the MOU states that WFP is

International Law, p. 68. For a general analysis on legal and non-legal agreements, seeChrister Ahlstrom, The Status of Multilateral Export Control Regimes – An Examination of Legaland Non-Legal Agreements in International Co-Operation, Uppsala: Iustus Forlag, 1999.

56 Aust, Modern Treaty Law and Practice, pp. 27–29. See also Klabbers, The Concept of Treaty inInternational Law, pp. 68 ff.

57 Article 102(1) provides that: ‘Every treaty and every international agreement enteredinto by any Member of the United Nations after the present Charter comes into forceshall as soon as possible be registered with the Secretariat and published by it.’

58 Aust, Modern Treaty Law and Practice, p. 38.59 Standard MOU provided by WFP in February 2001, para. 1, on file with the author.


primarily responsible for resource mobilisation, for transport anddelivery of food commodities and accountability for their proper use,while co-operating NGOs are primarily responsible for the finaldistribution and monitoring of all food commodities delivered to itby WFP.60

WFP’s standard MOU includes fairly detailed provisions on a widerange of issues, such as target groups for operations, resource mobilisa-tion, distribution of food commodities, financial reporting, co-ordinationmechanisms (consultations, meetings, etc.) and public information acti-vities. As for the settlement of disputes, the MOU states that conflictswhich remain unresolved at the local level will be brought quickly to theattention of the respective headquarters, and officials of the two partieswill immediately enter into discussions to reach a solution. The MOUmay be amended with the mutual agreement of WFP and the partnerNGO and remains ‘in effect until terminated by written notice’.According to a WFP official, the global MOUs are not intended to belegally binding.61

An MOU concluded between WFP and a Danish NGO demonstratesthat, while the subject matters regulated by it are basically the same asin the standard MOU, the individual clauses are considerably different.This is in spite of the fact that theMOU concludedwith theDanish NGOsis of a standing character and does not refer to a specific operation.62

Some provisions are clearly of importance from a legal point of view,such as the question of ‘employer responsibility’ for staff provided bytheNGO, the selection of individuals to be deployed on each assignmentand the period of deployment.63 The provision on dispute settlementstates that, if a dispute cannot be settled by mutual agreement betweenthe parties, either party shall have the right to request arbitration bythe ICC. The parties agree to be bound by such an arbitration award.Amendments may be made by mutual consent and in writing.64 Theagreement does not, however, refer to any national legal system or tointernational law. Nor does it state the period of validity. The clause onduration includes ‘legal’ expressions, such as that the MOU ‘shall enterinto force upon signature for a period of two years renewable subject tomutual consent’.65

60 Ibid., paras. 2–3. 61 E-mail message of 27 June 2001, on file with the author.62 MOU concluded betweenWFP and the Danish Refugee Council, 30 March 1999, on file

with the author.63 Ibid., paras. 3, 4, 12. 64 Ibid., para. 22. 65 Ibid., para. 23.


One interesting aspect of the standard MOU used by WFP is that itincludes the following requirement:

All NGO implementing partners of WFP in emergency operations must carryout their activities in compliance with the Code of Conduct for theInternational Red Cross and Red Crescent Movement and NGOs in DisasterRelief.66

As has beenmentioned earlier, this type of connection between codes ofconduct and agreements between NGOs and donor or partner IGOsseems to increase the importance and normative force of the codes,which have been adopted and adhered to voluntarily by NGOs andwhich lack formal sanction mechanisms.67 A similar clause is includedin the standard agreement used by UNHCR, as will be shown below,which refers to the same code of conduct – i.e. the Code of Conduct forthe International Red Cross and Red Crescent Movement and NGOs inDisaster Relief.

UNHCR’s Framework Agreement for Operational Partnership is a result of along process involving both the organisation itself and NGOs.68 Thecontent and language of the agreement is of a general nature, settinga framework for co-operation, consultation, planning, etc. and stating,for example, that ‘Contact at the Headquarters level is important’ andthat ‘Partners will work together to determine the mechanismsrequired to enable agreement on specific guidelines and standards asrequired for a particular refugee operation.’69 The responsibilities of therespective partners are discussed in general terms, such as ‘The Partnersrecognise the primary protection role and responsibility of UNHCR inany refugee situation.’70

66 Ibid., para. 4. The clause is preceded by a general requirement that: ‘All NGOs involvedin the distribution of WFP-supplied commodities must be willing to work with allbeneficiaries in complete impartiality, regardless of race, religion, nationality, politicalopinion or gender, without linking it, either directly or indirectly, to any religious orpolitical persuasion.’

67 Section 4.3.68 The Agreement is a follow-up to and an integral part of the Partnership in Action

process and its 1994 Oslo Declaration and Plan of Action. Para. 2 of the FrameworkAgreement for Operational Partnership between the United Nations High Commissioner forRefugees and NGOs, provided by the UNHCR NGO Unit in January 2001, on file with theauthor.

69 Framework Agreement for Operational Partnership between the United Nations High Commissionerfor Refugees and NGOs, paras. 9, 11.

70 Ibid., para. 5.


The Framework Agreement does not include any provision on enteringinto force or termination, but provides that its text is to be monitoredregularly by a joint UNHCR/NGOworking group. Nor does the Agreementrefer to legal rules or to binding dispute settlement. It states that:

Problems arising from the implementation of this Agreement will be dealt withinitially between the senior staff member of each partner at the field level. Inthe absence of a satisfactory conclusion, the matter can be referred by UNHCRoffices to theNGOCoordinator and by [XNGO] staff to a designated staffmemberin [XNGO] for review.71

The UNHCR Framework Agreement is thus clearly less specific than theMOUs used by WFP and has a mechanism for dispute resolution whichdoes not involve a third party or lead to binding decisions, such as theMOU concluded between a Danish NGO and WFP. An official of theUNHCR NGO Unit describes the Framework Agreement as a non-legaldocument, and points out that it has not been presented to theExecutive Committee for endorsement as a fact supporting this.72

As with the WFP standard MOU, the UNHCR Framework Agreementrefers to the Code of Conduct of the International Red Cross and RedCrescent Movement and NGOs in Disaster Relief. However, while theWFP standard MOU requires that ‘All NGO implementing partners ofWFP in emergency operations must carry out their activities in compli-ancewith’ the Code, the UNHCR Framework Agreement states that ‘ThePartners will be guided by the principles set down in’ the Code.73 In thisrespect, the UNHCR Framework Agreement thus also employs a less‘legal’ language than the standard MOU used by WFP.

The WHO Department of Emergency and Humanitarian Action hasconcluded some broad framework agreements with NGOs. These agree-ments provide that a particular NGO shall maintain a roster of candi-dates who shall be ready for rapid mobilisation and deployment insupport of the WHO’s emergency relief operations.74 The agreementsare very specific and employ language which indicates an intention tocreate legally binding obligations. A legal officer at the WHO has

71 Ibid., para. 29.72 Letter from the UNHCR NGO Unit, 12 April 2001, on file with the author.73 Standard MOU provided by WFP in February 2001, para. 4 and Framework Agreement for

Operational Partnership between the United Nations High Commissioner for Refugees and NGOs,para. 6. Both agreements on file with the author.

74 Agreement between the World Health Organization (WHO) and . . . [XNGO], provided in 2001by the WHO as example of the organisation’s broad framework agreements, on filewith the author.


confirmed that this is indeed the WHO’s intention.75 As an illustration,a few examples of provisions may be described:

A request by WHO to [XNGO,] for candidates available for deployment shallinclude details concerning the location of the emergency relief work, the natureof the work, the probable duration of the assignment . . .

WHO and the [XNGO] may agree to share the budgeted costs, in which caseWHO shall reimburse its agreed-upon portion of the budgeted costs to [XNGO]upon completion of the assignment, subject to any reduction should the bud-geted costs be greater than the actual costs . . .

The obligations of WHO are strictly limited to the express terms and condi-tions of this Agreement. WHO shall not provide any payments to the Officerunless expressly authorized by an amendment to this Agreement.76

The agreement includes detailed provisions on duration, terminationand amendment, while there is no clause on choice of law.77 Disputeswhich cannot be solved amicably or through conciliation shall be finallysettled by arbitration. Arbitration is to be carried out in accordance withthe arbitration rules of the United Nations Commission on InternationalTrade Law (UNCITRAL) if the parties cannot agree on the modalities.78

Project agreements

WFP’s global MOUs are complemented by local agreements concludedwith each NGO for the particular operation. As of June 2001, WFP hadnot yet adopted a standard document for these agreements. A draftstandard agreement has, however, been formulated.79 This draft agree-ment, which has a content indicating an intent to create legally bindingagreements, specifies the partner NGO as a ‘non-governmental, non-profit, non-political organisation registered with the Governmentof . . . ’.80 It contains detailed definitions and provisions on each part-ner’s obligations, on assessment and evaluation of operations, damagesand payments from WFP to the implementing partner. For instance, itstates that: ‘The Implementing Partner will be paid monthly byWFP onthe basis of invoices submitted and approved, and according to the

75 E-mail message of 28 September 2001, on file with the author.76 Agreement between theWorld Health Organization (WHO) and . . . [XNGO], paras. 2.1, 3.2, 7.3.77 Ibid., paras. 9.3, 9.4. 78 Ibid., para. 9.6.79 Draft Agreement Between the World Food Programme and . . . [NGO’s name] Regarding the

Distribution of WFP-supplied Commodities, provided by WFP in April 2001, on file with theauthor.

80 Ibid., Preamble, para. 3.


agreed budget.’81 It specifies the commencement, duration and termi-nation of the agreement in precise terms.82

Disputes may be referred, upon agreement by the parties, to a singlearbitrator – or, if agreement cannot be reached, to two arbitrators – to beappointed in accordance with the arbitration rules of UNCITRAL. Thearbitration decision shall be binding upon the parties.83 There is no refer-ence as to which legal system is to govern the agreement. As opposed tothe global or framework MOU, the draft for a standard local MOU alsocontains a clause on force majeure, which provides further support for theassumption that it is of a binding character.84WFP has confirmed that it isits intention to create legally binding agreements on the basis of the draft,while the global MOUs are not intended to be binding.85

It was mentioned above that the Framework Agreement used byUNHCR was general in its content and language and lacked referenceto binding dispute settlement by a third party. By contrast, an exampleof a local operational agreement concluded between UNHCR and aninternational NGO as an annex to the Framework Agreement is moredetailed and has to a greater extent the characteristics of a bindingagreement.86 The Agreement is, in its own words, concluded as anannex to the Framework Agreement for Operational Partnership inorder to ‘reflect the actual agreement on our joint efforts in deliveryof humanitarian assistance to Refugees and Internally DisplacedPersons in the Federal republic of Yugoslavia’, but does not refer to aspecific operation in that region.87 According to the Agreement, bothparties agree that they ‘shall’ carry out a number of activities. Forinstance, the partner NGO shall respond to UNHCR requests for assis-tance to beneficiaries, it shall attend co-ordination meetings and pro-vide UNHCR with information.88 UNHCR shall, for its part, provide thepartner NGO with relief items for distribution to beneficiaries, withsupport in obtaining customs clearance, and with diesel fuel at costprice when available.89 It is also stated that if the partner NGO usesbenefits provided for purposes not related to the humanitarian activitiesdescribed in the Framework Agreement, the UNHCR reserves the right towithdraw immediately the benefits extended in the Agreement.90 Thereis no applicable law clause or reference to dispute settling mechanisms.

81 Ibid., para. 9.1. 82 Ibid., para. 3.1. 83 Ibid., para. 11. 84 Ibid., para. 10.85 E-mail message from a WFP official, 27 June 2001, on file with the author.86 Local Operational Partnership Agreement between X [international NGO] and the United Nations

High Commissioner for Refugees, 21 March 2001.87 Ibid., Preamble. 88 Ibid., para. 1. 89 Ibid., para. 2. 90 Ibid., para. 3.


As to the termination of the agreement, it states that ‘it is valid’ to acertain date but may be terminated earlier by written notification ofUNHCR.91 It can be amended on the basis of mutual consent.92

The WHO Department of Emergency and Humanitarian Action con-cludes two types of agreements with NGOs on the operational level.93

The first category, project agreements, sets out that a particular NGOshall implement a specific project.94 The provisions regulate the pro-ject’s duration and financing, for instance that:

WHO shall reimburse the costs incurred by the Agency [i.e. the NGO] in theimplementation of the Project in accordance with this agreement, up to amaximum amount of US$ . . . , subject to the restrictions set forth below.95

The agreement also includes highly detailed provisions on the opera-tional work and the reporting of the NGO to WHO.96 Disputes whichcannot be solved amicably or through conciliation shall be settled by afinal arbitral award. If the parties cannot agree on the modalities ofarbitration, it shall be carried out in accordance with the rules of theICC.97 In sum, it is clearly an agreement of a binding character. It does,however, not include any provision on choice of law.

The second type of agreement used by the WHO Department ofEmergency and Humanitarian Action is called Agreements for thePerformance of Work (APWs). It regulates details of payments andreporting. Disputes are to be settled in the same manner as in the caseof the project agreements described above.98

The FAO uses the same standard Letter of Agreement for their co-operationwith governmental, intergovernmental andnon-governmentalorganisations. The common requirement regarding the ‘recipient organ-isation’ is that it is not-for-profit.99 Each Letter of Agreement (LOA)consists of a standard letter and an annex, which outlines the terms

91 Ibid., para. 4. 92 Ibid., Preamble.93 Letter from the WHO Department of Emergency and Humanitarian Action, 28 June 2001.94 World Health Organization Project Agreement, provided by the WHO Department of

Emergency and Humanitarian Action, on file with the author.95 Ibid., para. III(a). 96 Ibid., paras. III(c)–(g), IV. 97 Ibid., para. IV(l)a.98 World Health Organization Agreement for the Performance of Work, on file with the author.99 Letter of Agreement, provided by FAO, on file with the author, in FAO Manual, Section V

507, as updated on 9 October 1997, para 507.1(12). The LOA defines the recipientorganisation as a ‘governmental, regional, inter-governmental, parastatal or othernon profit institution’ (emphasis in original). According to an FAO official, the samestandard LOA is used for co-operation with NGOs (telephone conversation, 6September 2001).


and conditions and clearly describes the services and/or work products tobe provided under the agreement, andwhich constitutes an integral partof the LOA. The agreement is clearly of a legally binding nature, and theFAO Manual provides detailed instructions for its negotiation, on theresponsibility for each agreement concluded, on control measures, etc.

Each LOA states an amount which is to be made available to therecipient organisation, and specifies the activities for which the fundsprovided are to be used. Further details about each project are given inthe annex.100 The General Conditions include provisions on, inter alia,division of responsibilities, the use of the FAO emblem, on intellectualproperty rights (IPRs) and on the status of project staff. This part of theagreement also includes an applicable law clause, in contrast to all theagreements examined above. Interestingly, the FAO LOAs ‘shall be gov-erned by general principles of law, to the exclusion of any singlenational system of law’.101 Disputes shall be settled by arbitration inaccordance with the UNCITRAL Arbitration Rules, if the parties areunable to reach a settlement by mutual agreement. The arbitral awardis binding on the parties ‘as the final adjudication of any such dis-pute’.102 In addition, the LOA includes provisions on the reporting tobe carried out by the recipient organisations, terms of payment, amend-ments and entry into force.103

9.4 Conclusions

The central issue which has been examined in this chapter is whetherNGOs can and/or do conclude agreements under international law. Inthe discussion on this question, the term ‘treaty’ was not used, as ittends to be associated only with states and IGOs, although the VCLT 69and VCLT 86 with accompanying ILC commentaries do not exclude thepossibility that other entities may conclude treaties. Instead, the moreneutral term ‘agreement’ was used.

100 Standard Letter of Agreement, Introduction and Purpose.101 Ibid., General Conditions, para. 6. The Humanitarian Office of the European

Commission (ECHO) uses a Framework Partnership Agreement which is specifiedby means of General Conditions. According to Article 33 of the General Conditions,the Framework Partnership Agreement and operation contracts concluded withhumanitarian NGOs are to be governed by Belgian law. These contracts were thereforenot examined above.

102 Ibid., Settlement of Disputes.103 Ibid., Reporting, Terms of Payment, Amendment, Entry into Force.


As is the case with most of the questions relating to legal statusdiscussed in this book, the concepts of ‘international legal personality’or ‘subject of international law’ as such do not provide much guidance.Discussions which take these concepts as their starting-point tend to becircular, since they often suggest that only subjects of international lawhave the capacity to conclude international agreements, while on theother hand those entities which do so are considered to be subjects ofinternational law. In line with the inductive method outlined earlier inthis study, it was considered that an examination of the issue shouldconsider the existence and nature of agreements which have actuallybeen concluded between NGOs and states or IGOs.

The status and headquarters agreements concluded by the ICRC areinteresting in this respect. These agreements do indeed seem to beconcluded under international law, notably through the subjectmattersregulated by them. The ICRC itself regards these agreements as ‘inter-national treaties’.104 The existence of these agreements demonstratesthe ability of the international legal system to confer legal status onNGOs and other private entities when this is necessary or practicable.Because of the ICRC’s special status, it is however not particularly likelythat agreements similar to those of the ICRC will be concluded by otherNGOs within the near future.105

As regards the agreements concluded between IGOs and NGOs it canbe concluded that their juridical character demonstrates a scale wheresome are clearly intended to be binding, while others are not intendedto be binding or are difficult to characterise. Only one of the agreementsexamined includes an applicable law clause, the FAO LOA which, inter-estingly, subjects the agreement to ‘general principles of law, to theexclusion of any single system of law’. According to the principle ofparty autonomy, contracting parties have almost unlimited freedom inchoosing the applicable law of the contract, including general princi-ples of law.106 The ILC has also emphasised the importance of theintention of the parties in determining whether or not an agreement

104 E-mail message from the ICRC legal division, 22 June 2001, on file with the author.105 With the exception of the Order of Malta, which maintains diplomatic relations with

many states and is therefore likely to have concluded headquarters agreements underinternational law.

106 See chapter 9 and P.M. North and J. J. Fawcett, Private International Law, 12th edn.,London: Butterworths, 1992, pp. 476–486; Collier, Conflict of Laws pp. 185–196; Hober,Extinctive Prescription, pp. 94, 113. As regards agreements between states andcompanies, see Greenwood, ‘The Libyan Oil Arbitrations’, pp. 79–80.


is concluded under international law.107 According to Van Hecke, it isalso generally accepted that contracts concluded by IGOsmay be subjectto international rather than national law.108 It thus seems that the FAOLOAs are indeed governed by international law.

The methods outlined in the different instruments examined forsettling disputes vary in accordance with the binding or non-bindingcharacter of the document. Arbitration is the common method for theformer category, and the decisions of such bodies are binding on theparties to the agreement. It seems rare that disputes concerning con-tracts between IGOs and NGO are actually referred to arbitration.109

That is not surprising, as both parties have an interest in respectingthe contract or solving disputes amicably. IGOs depend on NGOs toco-operate with them for the purpose of humanitarian operations, andthere may not always be several NGOs available with the same type ofexpertise and capacity. NGOs, for their part, depend on the financialand other resources of IGOs. Nevertheless, if an IGO–NGO contractwithout an applicable law clause were to be subjected to arbitration,the arbitrator would in most cases be free to choose conflict of lawrules, or to make a direct choice of substantive law. It is more andmore common that arbitrators rely on general principles of law in thesubstantive part of the proceedings without having been expressly ortacitly authorised to do so by the parties.110

It may be asked whether the categorisation of an agreement as beingconcluded under international law renders it an ‘international agree-ment’, or indeed, a treaty. In the case of agreements concluded betweenIGOs and NGOs, however, this question does not seem to be of muchpractical significance. It is clear that such an agreement is not subject to

107 YILC 1962, II, p. 32.108 VanHecke, Contracts between International Organizations and Private Law Persons, p. 813. For

a discussion on the situation where state parties to an agreement have not providedthe arbitratorwith any instructions as to choice of law, seeHober, Extinctive Prescription,pp. 209 ff.

109 According to a WFP official, no disputes concerning an agreement between WFP andan NGO seem to have been referred to arbitration, e-mail message of 11 April 2001, onfile with the author. A WHO official believes that arbitration proceedings are few,possibly because of the relatively small amounts involved in individual agreementsand the desire of the parties to resolve disputes amicably, e-mail message from theWHO Department of Emergency and Humanitarian Action, 25 July 2001, on file withthe author.

110 Ole Lando, ‘The Law Applicable to the Merits of the Dispute’, in Julian D.M. Lew (ed.),Contemporary Problems in International Arbitration, Dordrecht: Martinus Nijhoff, 1987,pp. 107–110.


the law of treaties, at least not as it is expressed in VCLT 1969 and VCLT1986, which are designed for the relations among states and IGOs. Nordoes the categorisation of an agreement as a treaty place it under thejurisdiction of the ICJ.111 Instead, such disputes are solved in the man-ner stipulated by the agreement, in general through negotiation orarbitration. As regards agreements concluded by states or IGOs withentitieswith special status, such as the ICRC, the answermay be different.The ICRC considers its headquarters agreements to be internationaltreaties and it can be observed that these agreements concern issues,such as immunity, which are otherwise regulated in treaties.112 It seemspossible that a conflict regarding, for instance, the interpretation of oneof the ICRC’s headquarters agreements could be solved by means of thelaw of treaties, at least by means of analogy. Although this type ofagreement is not likely to be concluded by many, or any, other NGOsin the near future, the status and headquarters agreements of the ICRCdemonstrate that there is at least a potential for such a development ininternational law.

If co-operation between IGOs and NGOs continues to increase, morecontracting organisationsmay find it useful to refer explicitly to generalprinciples of international law in order to determine a neutral legalground for their agreements. Increasing responsibilities of NGOs forhumanitarian and other operations could also create a need for provi-sions requiring compliance with international humanitarian law andhuman rights. As of today, some agreements state that contracted NGOsshould carry out their activities in compliancewith the Code of Conductfor the International Red Cross and Red Crescent Movement and NGOsin Disaster Relief.

111 As regards agreements between IGOs and NGOs it should, however, be borne in mindthat most specialised agencies of the United Nations may request an advisory opinionon legal questions arising within the scope of their activities. Article 65 of the Statuteof the International Court of Justice, Report of the International Court of Justice 1 August1999–31 July 2000, para. 49; Sands and Klein, Bowett’s Law of International Institutions,p. 364.

112 Letter from the ICRC legal division, 22 June 2001, on file with the author.


PART III * CONCLUSION

10 Summary and concluding remarks

10.1 The legal status of NGOs in international law

In the first part of this study it was demonstrated that the theories oninternational law look very differently on the legal role and position ofnon-state actors.1 It was argued that it would be more constructive if anexamination of the legal status of NGOs could be based on the commonelements of such theories, a few basic assumptions that most inter-national lawyers could accept, than if one particular theory wasadhered to. The common assumptions thatwere identified as a platformfor the purpose of the study on NGOs were, first, that states are thedominant actors of current international law; second, that they are ableto confer legal status on non-state entities; third, that the increasinginternational role of non-state actors is a fact that international lawneeds to deal with; and, fourth, that treaties, case-law and resolutionsdealing with the procedure of IGOs provide relevant information on theinternational legal status of NGOs.2

Further, an inductive method, or approach to international law, wasoutlined on the basis of the fundamental assumptions mentionedabove. This inductive approach can be summarised as the standpointthat the rules, relations and practices that actually exist ‘on the ground’are law itself and that, at least sometimes, general rules can be inducedfrom many separate rules. It was asserted that the classical conceptsrelating to the actors of international law – such as international legalpersonality and subjects of international law – are rather ambiguous intheir content, and cannot therefore help to clarify the situation. Inspite of the unclear meaning of these concepts, they are sometimes

1 Section 3.2. 2 Section 3.2.

513

understood to reflect a priori notions of the ‘real’ nature of internationallaw and its actors. If this understandingwere accepted as the basis for anexamination of the status of NGOs, it would seem to determine bymeans of deduction which material would be relevant and whichwould not. It was therefore suggested that the term ‘legal status’, con-sidered as bothwider andmore neutral in relation towhich fields of lawshould be examined, was a better concept. An investigation on the legalstatus of NGOs can, and should, deal with international legal materialfrom all parts of international law that expressly relate to NGOs or canbe used by these organisations for activities within the internationallegal system.3

In line with what has been said above, the material thus assembledand examined will not be measured against the notions of ‘subject ofinternational law’ or ‘international legal personality’. The answer to thequestion about the legal status of NGOs is the legal survey conducted inpart II of the volume. In other words, the international legal status ofNGOs is the sum of all the rules and practices laid down by states andIGOs for their interaction on the international plane with NGOs, andany more general norms which can possibly be induced from thismaterial. It is the choice of the reader to decide if this material can becategorised in terms of international legal personality and, in that case,whether the answer is ‘yes’, ‘no’ or ‘partial’.

The legal and empirical survey of part II was extensive, and the resultsneed to be summarised. In the survey on rights and obligations, it wasfound that NGOs as organisations possess some international legalrights in their capacity as organisations, organisation rights, whichare related to their existence and functioning.4 Because of differencesin the geographical andmaterial scope of treaties which formulate suchorganisation rights, the rights of NGOs in different geographical regionsand of different categories vary. As regards universal protection for allcategories of NGOs, it can be argued that the ICCPR bestows organisa-tion rights on all NGOs, notably the rights to freedom of association andassembly. However, the evidence that these rights include corporateelements is not strong, and the complaints system established underthe Optional Protocol is open only to individuals. As compared to thegeneral protection of NGOs on the universal level, international labourlaw gives a strong position to organisations of workers and employers.The ILO Conventions on freedom of association guarantee, inter alia, the

3 Section 3.2. 4 Chapter 4.

514 CONCLUS ION

right to freedom of association for workers’ and employers’ organisa-tions and the right to collective bargaining for the former. ICESCR alsoincludes organisation rights for trade unions. The UN Declaration onHuman Rights Defenders formulates some protection for human rightsNGOs through the recognition of rights exercised by individuals inassociation with others, albeit the Declaration is not a bindinginstrument.

On the regional plane, instruments that create organisation rights forall types of NGOs include the ECHR, which provides strong protectionfor the rights of organisations. This is demonstrated by the fact thatorganisations have locus standi before the Court to institute cases con-cerning violations of the right to freedom of association, assembly,expression, religion and all other Convention rights which are notinherently linked to the physical person. International NGOs basedwithin the territory of state parties to the European Convention on theRecognition of the Legal Personality of International Non-GovernmentalOrganisations also have the right to be recognised as legal personswithinthe territories of other state parties to the Convention. In addition, theCoE Fundamental Principles on the Status of Non-GovernmentalOrganisations in Europe formulate, if not legally binding rights, at leastguidelines on the protection that should be afforded NGOs undernational legislation, and express a general recognition of the importanceand legitimate expectations of NGOs within European society.

Environmental NGOs within the territory of state parties to theConvention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters (the AarhusConvention), which is a convention adopted within the UN EconomicCommission for Europe, have clear rights in their capacity as organisa-tions. As part of ‘the public’ and ‘the public concerned’, environmentalNGOs have the right of access to information, public participation indecision-making and access to justice in environmental matters. SuchNGOs also have the right to appropriate recognition and support fromstate parties, which shall see to it that their national legal systems areconsistent with this obligation. The organisations’ rights guaranteedunder the Aarhus Convention are supported by the compliance mechan-ism which has been established and which is accessible to NGOs.

Organisation rights within the field of European regional labour laware laid down by the ECHR and the European Social Charter, which arealso both connected tomonitoringmechanisms accessible to NGOs. TheAmerican Convention onHumanRights, for its part, is expressly limited

SUMMARY AND CONCLUD ING REMARKS 515

to the protection of individual rights, while the character of rightsformulated by the African Charter for Human and Peoples’ Rights isambiguous in this respect.

On the side of obligations, the position of NGOs is still vague, prob-ably because of general concerns regarding the formulation of inter-national legal duties for non-state actors outside clearly defined fields,such as international criminal and humanitarian law.5 The discussionsheld within the UN Commission on Human Rights and ECOSOC regard-ing the pre-draft declaration on human social responsibilities illustratethe controversial character of this debate. Nevertheless, some ‘greyzones’ of normativity – fields of quasi-legal responsibilities – seem toexist within human rights law, where non-state actors have the respon-sibility, inter alia, not to ‘engage in any activity or to perform any actaimed at the destruction of any of the rights’ of others, as stated inArticle 30 of the Universal Declaration of Human Rights. Moreover,state parties to the International Convention for the Elimination of allForms of Racial Discrimination are obliged to prohibit racist organisa-tions and their activities. This Convention thus lays down limits to therights of organisations. NGOs which enter into formal relations withIGOs also undertake certain obligations formulated by the resolutionswhich form the basis for such co-operation. Finally, many NGOs volun-tarily adhere to codes of conduct. Compliance with these codes is some-times laid down as a requirement by IGOs in their agreements withNGOs, which increases the normative character of the formally volun-tary codes.

International humanitarian law is an area of particular character,more accustomed to dealing with non-state actors. As for the status ofNGOs within this field of law, there are numerous provisions in theGeneva Conventions andAdditional Protocolswhich oblige state partiesto respect and protect the work of humanitarian organisations, oncetheir assistance has been accepted. Themost interesting rule within thisfield of law from the perspective of the international legal status ofNGOs is the provision of the Geneva Conventions that states that thecontracting partiesmay agree to entrust to an organisation which offersall guarantees of impartiality and efficacy the duties of a protectingpower. Although this is a possibility usually associated with the ICRC,it is not explicitly reserved for that organisation.6

5 Section 4.3. 6 Section 4.4.

516 CONCLUS ION

An extensive part of the legal survey dealt with the standing of NGOsbefore international and regional tribunals and quasi-judicial bodies.7

When the whole complex of such procedures is examined, it is strikingto find that NGOs have acquired standing within so many fields andregions of law. It is also clear that the number of procedures accessibleto NGOs is increasing. On the international level, however, NGOs stillhave access only to quasi-judicial procedures, which include the WorldBank Inspection Panel, the ILO freedom of association procedures, the‘1503 procedure’ of the UN Commission on Human Rights and theUNESCO procedure for individual communications. In addition, NGOsare often active in individual cases examined by the UN treaty bodies,but lack standing of their own. The most important internationalcourt – the ICJ – is closed to non-state actors. This does, however, notmean that NGOs have not attempted to make use of this Court. It isgenerally recognised that it was a coalition of NGOs, the World CourtProject, which managed to convince first the WHO and then the UNGeneral Assembly to request the advisory opinion on the Legality of the

Use by a State of Nuclear Weapons in Armed Conflict.8

The regional human rights systems all provide NGOs with locus standi.The Inter-American and African Commissions employ generous ruleson standing, the latter allowing for actio popularis, and the Europeansystem provides NGOs which have suffered a violation of a Conventionright with direct access to the Court. The EC field of law, for its part,provides only limited possibilities for NGOs to act directly before theCourt, even though some NGOs have made use of the rules on judicialreview. Other regional compliancemechanisms that provide NGOswithlocus standi include the Aarhus Convention procedure for individualcommunications, the citizen submission procedure connected withNAAEC, and the Collective Complaints procedure established for themonitoring of the European Social Charter. The European Court ofHuman Rights and the ECJ are currently the only courts which aredirectly accessible to NGOs as parties, and the latter in particular pro-vides limited access. However, when the African Court of Justice comesinto operation, NGOs will be able to institute cases before that court aswell.

Rules on amicus curiae participation in international proceedings giveNGOs a possibility to intervene in proceedings before some bodies fromwhich they are otherwise excluded, such as the international criminal

7 Chapter 5. 8 Section 5.2.


tribunals and the WTO dispute settlement procedure, although withinthe latter amicus curiae briefs have very rarely been actually considered,and then only as part of the submissions of one of the parties.9 The ICJhas the possibility under its Statute to notify ‘international organisa-tions’ likely to be able to furnish relevant information that the Courtwill be prepared to receive written statements or to hear oral state-ments, but seems to have issued such a notification to an NGO onlyonce. With its more recent Practice Directions, the ICJ has, however,recognised that material may be submitted by international NGOs andthat suchmaterial will be taken care of by the Court andmade availableto states and IGOs, albeit not regarded as formal submissions. It is alsomade clear that states and IGOs presenting written and oral statementsin an advisory case are free to refer to material submitted by INGOs.Furthermore, there is also a possibility for state parties to file amicusbriefs from NGOs as part of their own submissions.

NGOs also have a possibility to act as amici within several proceduresunder which they also have standing of their own. The European Courtof Human Rights provides the clearest examples of judgements whichexplicitly describe and discuss the information submitted by NGOs intheir capacity of amici. The Inter-American Court of Human Rights has agenerous amicus practice, in particular in its advisory cases, but has untilthe issuing of recent opinions not had the practice of describing orreferring to amicus submissions in its judgements. The AfricanCommission has the possibility to receive submissions from NGOs,although it does not seem to use the designation of amicus curiae. TheECJ employs a restrictive practice towards amici, requiring that theintervenor has a direct interest in the case.

In addition to making written or oral submissions in the capacity ofamicus, NGO staff sometimes act before international and regionalhuman rights bodies as the victim’s counsel.

The co-operation of NGOs with IGOs in the form of consultativerelationship or similar arrangements and submission of informationto different bodies, such as the UN treaty bodies and the extra-conventional mechanisms, appears to be a relationship of mutualdependence.10 The formal arrangements for co-operation betweenIGOs and NGOs, or civil society in general, have demonstrated anincreasing trend since the late 1990s. In 1999, the first coherent arrange-ments for co-operation with civil society organisations were established

9 Chapter 6. 10 Chapter 7.

518 CONCLUS ION

within theOAS. The European Commission issued its first guidelines forconsultation with civil society in 2003, if only in the form of a non-binding policy document. In the same year, the CoE transformed itssystem for consultation with international NGOs to a system for parti-cipation of INGOs and partnership with national NGOs. It can further beobserved that the recently formed AU has established an advisory body,ECOSOCC, consisting of representatives of civil society organisations.

Another interesting indication of a development towards a strongerposition for NGOs within IGOs is that the use of the term ‘participation’seems to be becoming more frequent at the expense of ‘consultation’.The former concept has been introduced within the CoE and the OAS,while, for example, ECOSOC and the ILO still use ‘consultation’. It canalso be observed that the term ‘civil society organisations’, or ‘CSOs’seems gradually to be replacing ‘NGOs’.

Finally, the Report of the Panel of Eminent Persons on Civil Societyand UN Relationships should be remembered. This report has not yetled to any actual reforms within the United Nations, but is interestingbecause of the Panel’s recommendations for a stronger relationshipbetween the United Nations and civil society in general and anenhanced co-operation between NGOs and central UN fora such as theGeneral Assembly and the Security Council.11 One interesting exampleof a close relationship between states and NGOs, which is not new butmay nevertheless illustrate possible future developments within somefields of international law, is the ILOwhich, with its tripartite structure,incorporates representatives of states, employers’ organisations andworkers’ organisations at all levels.12

NGO participation has also become a common characteristic of manyinternational conferences. The study of UN Conferences demonstratedan increasing acceptance of NGOs as partners of dialogue at such fora, atboth law-making and other meetings, on the part of states.13 In fact, thenumber of NGO representatives often exceeds the number of staterepresentatives. The negotiation of the Statute for an InternationalCriminal Court during the Rome Conference was given special atten-tion, and on the basis of interviews with state and NGO representativesit was concluded that NGOs had considerable influence on the negotia-tions, perhaps in particular in pressurising for the Court to be created atall, but also on the formulation of different parts of the Statute, such asthe role and independence of the prosecutor.14 This type of influence

11 Section 7.2. 12 Section 7.3. 13 Chapter 8. 14 Section 8.6.


can hardly in itself be considered as relevant for determining an actor’sinternational legal status. After all, it is states that take the decisions,and a decision-maker may be influenced by many different persons andphenomena, inside and outside of meeting rooms. However, the influ-ence that NGOs seem to have in some international fora demonstratesthat the rules that allow for their presence and for their submissions arenot just a facade, but evidence of an acceptance of the participation ofNGOs in international legal discourse. Another interesting feature ofintergovernmental negotiations is that states are sometimes repre-sented by NGOs (or NGO staff ) – for example, at environmental meet-ings. On the other hand, there are also conferences and bodies whichhave limited contacts with NGOs, such as the IMF.

Finally it was demonstrated that while only rather unique non-stateentities such as the ICRC conclude agreements under internationallaw with states, many NGOs enter into agreements on operationalco-operation with IGOs.15 Some of these instruments are not of a bindingcharacter, which can be explained by the fact that IGOs and NGOs oftenhave a mutual interest in settling their conflicts amicably, and thatdisputes are rare. However, there are also examples of agreementsbetween IGOs and NGOs which are intended to be legally binding andwhich refer explicitly to general principles of international law in theirapplicable law clause. Although there is some disagreement as towhether an agreement involving a non-state party can be located out-side national legislation concerning both the law of the contract and thematerial rules, it seems that the principle of party autonomy generallyallows the parties freely to choose any legal system, including interna-tional law, to govern the agreement. It therefore appears that NGOshave legal status to enter into agreements under international lawwhen IGOs deem this useful. If states also accepted the possibility ofconcluding agreements under international law with NGOs other thanthe ICRC, there does not seem to be anything to prevent them doing so.The state community has accepted a strong international legal status fordifferent sui generis entities, such as the Order of Malta, which is also anon-state actor, even if in historic times it controlled territory.16

This diverse picture of the international legal status of NGOs leads tothe question whether there are any elements of this status which arecommon to all categories of NGOs throughout the world. As regardsrights, this is uncertain. It is possible that the ICCPR enunciates

15 Chapter 9. 16 See section 2.4.

520 CONCLUS ION

organisation rights, but as was mentioned above, there is little evidenceto support such a suggestion. As far as procedural capacity is concerned,there are three complaints systems which provide locus standi for NGOsboth generally and universally. These include the ‘1503 Procedure’ of theUN Commission on Human Rights and the UNESCO procedure for indi-vidual communications. In addition, the African Commission for Humanand Peoples’ Rights receives complaints from all categories of NGOs fromall parts of the world regarding violations of the African Charter onHuman and Peoples’ Rights. It can also be observed that rules for amicuscuriae submissions do not include any restrictions as to type or region ofthe NGO which seeks leave to make a submission. Consultative statuswith international organisations is another aspect of legal statuswhich ispotentially open for all NGOs. There is, however, generally a requirementthat the NGO should be wholly or partly concerned with the issues ofconcern to the IGO with which consultative status is sought. NGOs mayalso participate in international conferences convened by the UnitedNations if they can demonstrate that their activities are of relevance tothe conference and its preparatory process. Finally, many NGOs arepotential partners in operational co-operation with intergovernmentalbodies, and are therefore also potential parties to agreements concludedunder international law. In sum,most elements of the international legalstatus of NGOs vary depending on which category of NGOs a particularorganisation belongs to and in which region it is based.

10.2 Possible developments of the legal status of NGOsthrough standard-setting

Apart from gradual developments of the international legal status ofNGOs through diverse rules in treaty-law, resolutions adopted withinIGOs and customary law, states might in the future see advantages inclarifying and generalising the legal position of NGOs through inter-national instruments. One way of doing this has already been exploredon the regional plane. The European Convention on the Recognition ofthe Legal Personality of International Non-Governmental Organisationsprovides that the legal personality and capacity of international NGOswithin the territory of the state party where they have their statutoryoffices shall also be recognised within other contracting states.17

17 Section 4.2.


A similar instrument on the international plane would be likely tofacilitate the work of some international NGOs. However, bearing inmind the weak support which the Convention has obtained in terms ofthe number of state parties, it is not probable that a correspondingtreaty on the international plane would be successful. This is particu-larly true considering the threat of terrorism, which creates a strongdemand among states for control of any foreign group that wishes toacquire property or perform other legal acts within a country. Onepossible solution would be to formulate very strict requirements forthe acquisition of legal personality under such a global convention sothat only well-established and scrutinised NGOs would come intoquestion.

However, while the European Convention on the Recognition of theLegal Personality of INGOs provides a legal platform for NGOs whichseek to extend their activities into new states, themain interest ofmanyNGOs is to participate on the international plane. One way of attribut-ing NGOs with a more general legal status on the international planewould be to create a common system among a selected group of IGOs forNGO participation. Today, there is a host of different mechanismsin operation within different intergovernmental bodies. INGOs oftenco-operate with several IGOs and report to different bodies on their ownactivities in accordancewith the requirements of various resolutions onconsultative status and similar mechanisms. At the same time, secretar-iats and NGO co-ordination units within different IGOs review applica-tions and reports from the same NGOs. A shared system would thusmean that available resources could be usedmore rationally. Moreover,the systems for reviewing applications from NGOs that seek to partici-pate could be made more based on expertise, and thus become lesspoliticised. The bodies for granting consultative status and accredita-tion are usually composed of state representatives, and whether organ-isations are granted or denied access sometimes depends more onwhere they are based and which states are represented in the organdeciding on their application, than on to what extent they meet theformal requirements. A more general status that would provide accessto a combination of international institutions after review of the organ-isation could also have the function of creating public confidence forthe NGOs accepted, which could perhaps even lead to a more generallyaccepted understanding of the concept of ‘NGO’. Furthermore, it couldalso create clearer accountability on the part of NGOs by requiringcompliance with international legal rules or codes of conduct, in

522 CONCLUS ION

particular within the framework of operational collaboration. Finally,better methods for securing fair geographical and social representationcould be established in relation to such arrangements for co-operation.

Shared or centralised arrangements for partnership with NGOs oughtto be of particular interest within the UN system. The status thusacquired could provide access to selected organs of the United Nationsand specialised agencies. This type of system already exists on a smallerscale under ECOSOC, and the Panel of Eminent Persons on Civil Societyand UN Relationships has suggested that the system for consultativestatus should be extended outside ECOSOC. Depoliticisation of theprocess for revising applications has also been regarded as essential bythe Panel.18

The thought of creating a possibility for a more generalised form ofparticipatory status for NGOs might, however, mainly be the reflectionof frustration over the diversity and complexity of today’s system, orrather absence of a system. It is not clear that a general system forIGO–NGO co-operation would be better. Any reforms in these areascan be decided upon only after an open and participatory process ofcareful consideration inwhich the views of NGOs are, naturally, central.It is very probable that such deliberations would produce a strongnegative reaction from NGOs, who have reasons to remain scepticalabout centralisation whichmay entail risks that access will in reality berestricted or controlled in political, discriminatory or otherwise inap-propriate ways. It is also possible that today’s plurality of systems isneeded in order to retain flexibility and the possibility of adaptingmechanisms for co-operation to different situations and circumstances.

10.3 NGOs and the legitimacy of international law

Chapter 1 of the study placed the investigation of the international legalstatus of NGOs in a wider political and legal setting. A concept of legallegitimacy was chosen according to which lawmust ultimately be basedon individual consent.19 In consequence of this conceptualisation, thelegitimacy of international law was considered to be flawed as long asits rules on the recognition of states and governments did not, inpractice, require democratic government.20 It was also suggested thateven if all states were internally democratic and international lawrequired governments to have been elected in order to be entitled to

18 See section 7.2. 19 Section 1.2. 20 See section 1.2.


represent a state internationally, there would still be problems relatingto the legitimacy of international law. The process of globalisation, withits diffusion of state power, can cause democratic deficits whichweakenthe legitimacy of international law in relation to people all over theworld. In the report of the Panel of Eminent Persons on Civil Society andUN Relationships, it is observed that the weak influence of traditionaldemocracy inmatters of global governance is one reasonwhy citizens indifferent parts of the world are urging greater democratic accountabilityfrom international organisations.21 The legitimacy of internationaldecision-making is also problematic in relation to nationally unrepre-sented or underrepresented groups, such as cultural, religious andlinguistic minorities.

However, an international legal system based on states was acceptedas a fact which is unlikely to be replaced by other systems, such ascosmopolitan democracy, at any time in the nearer future. Therefore,ways to strengthen the legitimacy of the state-centric system needed tobe considered. Habermas has suggested that, although conventionaldemocratic procedures for decision-making and political representa-tion can never be entirely replaced, a discourse-theoretical understand-ing of democracy means that factors such as a functioning publicsphere, the quality of discussion, accessibility and the discursivecharacter of opinion and will formation can contribute to strengthen-ing the legitimacy of international decision-making. In other words, thelegitimacy of international law can be strengthened if international foraare renderedmore transparent andmore open for participation by awiderange of groupings and interests from different sectors and segments ofsociety – such as indigenous peoples, minorities with cultural, linguisticor religious characteristics, academia, trade unions, religious associa-tions, NGOs, etc. In accordance with the discourse principle, decisionsshould be based on rational discourse which provides access for allpersons possibly affected. The reforms for greater access and transpar-ency which have been taking place within some fields of internationallaw and some international institutions ought therefore to be extended.22

It needs to be repeated that it was not suggested that NGOs shouldhave a general right to vote or negotiate alongside governments ininternational bodies. The role of NGOs which has been in focus of thisstudy is one of participation. It was argued that the regulated participationof NGOs as informants and partners of dialogue in intergovernmental

21 See sections 1.2, 7.2. 22 Section 1.2.

524 CONCLUS ION

meeting rooms was a phenomenon that was healthy for the overallfunctioning of international law and that it contributed to strengthen-ing its legitimacy, even if the participation of NGOs could not makeinternational law ‘democratic’. From a more pragmatic point of view,co-operation with NGOs can also help to bring information and expertiseinto intergovernmental fora and back again to the public. The role ofNGOs in monitoring national implementation of international law anddocumenting breaches is important: in fact, some intergovernmentalbodies seem to depend on co-operation with NGOs in order to functionproperly at all.

What has been stated above may give the impression that it has beenassumed here that NGOs are ‘good’. This is not the case. It is recognisedthat NGOs are self-appointed, single-issue-oriented and often notaccountable to the people on whose behalf they claim to speak. TheNGO sector is also dominated by the North in several respects, such aspower and resources. In the first part of the study a definition of ‘non-governmental organisation’ was outlined on the basis of definitionswhich are contained in international instruments. This definition wasfairly basic in its character and did in principle not distinguish betweenorganisations on the basis of their objectives.23 In line with this ‘empty’definition, it should be observed that the focus of this study is more onnon-governmental organisation as a form or a method of participationthan on the character or role of particular NGOs. Although this distinc-tionmight seem artificial, it is important to make it for the purpose of adiscussion on legitimacy. It is thus suggested that the question ofwhether international law should provide and protect a form of polit-ical participation through non-governmental organisation is on anotherand more fundamental level than the issue of which particular organ-isations should be entitled to participate in which particular situations,and what should then be required in terms of structure, objective,accountability, etc. in these different contexts.

It should also be observed that the points made here as regards theinternational participation of NGOs are not intended to be exclusive ofother actors. The fact that it is suggested that the role of NGOs isimportant in some contexts does not thus mean that other actors areconsidered less important. The focus on NGOs in the discussion hasbeen caused by the need for delimitation only. At the same time, it isargued that non-governmental organisation as a form or an instrument

23 Section 1.3.


of participation is important, because it is neutral to different interests,sectors of society and objectives. It provides a common platform for adiversity which is also its strength.

The elements of the international legal status of NGOs which havebeen summarised earlier in this chapter are many and diverse. Theinternational legal status of NGOs, as composed of these different fac-tors, is considerable and this status is increasing. New complaints pro-cedures which provide standing for NGOs were put in place during the1990s and the amicus practice of some courts has become more permis-sive towards NGOs. New arrangements for consultationwithNGOs havebeen established by IGOs, and some of the older mechanisms for con-sultation with NGOs have been replaced by arrangements for participa-tion. The participation of NGOs in international conferences has alsobeen incremental, and the influence of these organisations on inter-national law-makingmore generally recognised. In 2001, the Conventionon Access to Information, Public Participation in Decision-Making andAccess to Justice in Environmental Matters (the Aarhus Convention)entered into force.24 Interestingly, this Convention focuses specificallyon the right to public participation, albeit only within the field ofenvironmental law, and affords NGOs with several rights of a partici-patory nature.

In view of what has been said above about the role of NGOs in relationto the legitimacy of international law and the position that has actuallybeen provided for NGOs in international law, the question can be raisedif the international legal system will reach a point when NGOs have ageneral right to participate in international legal discourse. I suggestthat, as of today, they have at least a legitimate expectation.

24 Section 4.2.

526 CONCLUS ION

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Interviews

Note: The titles specified are those held by the persons interviewed when theevents relevant for the interview occurred.

Sir Franklin Berman, Legal Adviser to the British Foreign and Common-wealth Office andHead of the UK delegation to the RomeConference foran International Criminal Court

Carl-Henrik Ehrenkrona, Director for Legal Affairs of the Swedish Ministryfor Foreign Affairs

Cristopher Hall, Legal Adviser, Amnesty International

Peter Nobel, member of the United Nations Committee Against RacialDiscrimination

Philippe Kirsch, Ambassador, Legal Advisor to the Canadian Departmentof Foreign Affairs, Head of the Canadian delegation and Chairman of theCommittee of the Whole at the Rome Conference for an InternationalCriminal Court

William Pace, Convenor of the NGO Coalition for an InternationalCriminal Court and Executive Director of the World FederalistMovement

Emma Playfair, Executive Director, The International Centre for the LegalProtection of Human Rights (Interights)

Sir Nigel Rodley, Special Rapporteur of the United Nations Commissionon Human Rights on the Question of Torture

Per Saland, Director, Swedish Ministry for Foreign Affairs, Vice Head ofthe Swedish delegation andChairman of theWorkingGroup onGeneral

545

Principles and the Working Group on Applicable Law at the RomeConference for an International Criminal Court

Philippe Sands, Professor, University of London, and Project Director ofthe Project on International Courts and Tribunals

546 INTERV IEWS

Index

1503 Procedure 236–7, 52116 Austrian Communes and some of their

Councillors v. Austria case 250Aarhus Convention on Access to

Information, Public Participation inDecision-Making andAccess to Justice inEnvironmental Matters 160–4, 515, 526

procedure for individualcommunications 285–8, 517

access to legal advice 337–8actio popularis 302, 517actors of international law 82–117

increasing role of non-state actors111–12

new actors entering legal system 87–91,96–9, 107–9

states as dominant actors ofinternational law 111

who are the actors of international law84–7, 91–6, 103–7

Advisory Opinion on Namibia 305Advisory Opinion on the International Status of

South-West Africa 305African Charter on Human and Peoples’

Rights 183–7, 440, 442, 515African Commission on Human and

Peoples’ Rights 279–85, 440–4, 517,518, 521

African Court 285, 517NGOs and 198non-party participation in legal process

361–2, 518standing before 186–7, 279–85, 517, 521

African Concern 315–16African Union, NGOs and 438–44, 445, 519Agenda 21 451, 454–5agreements see international agreementsaid programmes 7, 21

humanitarian aid see humanitarian aidaims/objectives of NGOs 16, 47, 52

Akayesu case 314–15, 317, 364Alfred Musema case 315–16American Committee on Africa 305American Convention on Human Rights

181–3, 515Inter-American Commission on Human

Rights 274–7, 350–4, 437–8, 517Inter-American Court of Human Rights

277–9, 354–61, 364–5non-party participation in legal process

350–61, 518standing before 181–2, 271–9, 517:

procedure 271–4American Declaration of the Rights and

Duties of Man (1948) 271American Federation of Labor 375Americas Watch 358amicus curiae see non-party (third party)

participationAmnesty International 20, 21, 330, 331, 332,

333, 334, 335, 337, 340–1, 353, 400, 459Amparo Tordecilla Trujillo v. Colombia case 351Apeh Uldozotteinek Szovetsege and others v.

Hungary case 173–4, 250Arend, Anthony Clark 84, 106–9, 112asbestos 323–6, 327Ashingdane v. UK case 330assembly rights 139, 142, 169–72, 183

issues raised in cases before ECHR 256Association for Peace in the Continents

(ASOPAZCO) 384–5association rights

African Charter on Human and Peoples’Rights 183–6

American Convention on Human Rights182

European Convention on Human Rights169–72

European Social Charter 178ICCPR 140–4, 147

547

association rights (cont.)ILO freedom of association procedures

237–9, 514issues raised in cases before ECHR 255–6limitations 190–2Universal Declaration of Human Rights

139Asylum case 303Aust, Anthony 490, 498–9autonomy 26, 27, 494

NGOs and 7, 46–7, 52Aydin v. Turkey case 328, 338–9

Bacchelli v. Commune di Bologna case 76Baena Ricardo et al. v. Panama case 278–9, 357Bahaddar v. the Netherlands case 328Bamaca Velasquez v. Guatemala case 356–7Bangladesh, Jamuna Bridge Project 243–4Banjul Charter see African Charter on

Human and Peoples’ RightsBekker, Peter 61–2belligerent groups 64BIOTICA Ecological Society v. Turkmenistan case

287Blake case 278Blaskic case 313Blokker, Niels M. 61, 85, 366Brannigan and McBride v. The United Kingdom

case 332–4Brownlie, Ian 89–90Bruggemann and Sheuten v. Federal Republic of

Germany case 252Buchanan, Allen 25–6budgets of NGOs 20Buergenthal, Thomas 129, 355Byers, Michael 77, 104–6, 107, 109

Canea Catholic Church v. Greece case 249–50capacity see legal capacitycapital punishment 229–30, 276, 340–1Carl Baker case 351CAS Succhi di Frutta SpA v. Commission of the

EU case 346Castells, Manuel 13–14Center for Justice and International Law

(CEJIL) 276Central American Court of Justice 55Cha’are Shalom Ve Tsedek v. France case 175Chahal v. UK case 334–6Chen, Lung-chu 92Chinkin, Christine 307–8Christensen, Camilla 362Christian Solidarity International 386civil conflict 203, 206, 213, 214Civil Liberties Organization in respect of the

Nigerian Bar Association v. Nigeria case184–5

civil service, trade unions in 141civil society 15–17, 31, 35, 104ICJ nuclear weapons opinion and 221,

222UN and 406–10

closed shop 341Coalition for Women’s Human Rights in

Conflict Situations 316–17codes of conduct 198–201Codex alimentarius 22colonial system, wars of liberation 203, 214communicative democracy 35communitarianism 17companies see corporationsCompetence of the ILO to Regulate, Incidentally,

the Personal Work of the Employer case309

conferences see international conferencesconflict/warcare of wounded 210civil conflict 203, 206, 213, 214colonial wars of liberation 203, 214Geneva Conventions (1949) 70, 202–4,

205, 495, 516: humanitarianorganisations and 205–15

humanitarian law and 202–4prisoners of war 211–12protection of civilians 212, 213, 214protection of property 213relief schemes 213

consent, state 25–6constitution of NGOs 16, 50–1, 52constructivism 102consultation procedureEuropean Social Charter 179ILO Conventions 157United Nations Economic and Social

Council (ECOSOC) 374–86contractsemployment contracts 491law of the sea and 491

Convention Against Torture 234–5Convention on the Elimination of All

Forms of Discrimination againstWomen 139

Convention on Environmental ImpactAssessment in a TransboundaryContext 288

Convention on the Law of the Sea 491Convention on the Prohibition of the Use,

Stockpiling, Production and Transferof Anti-Personnel Mines and on theirDestruction (1997) 70

corporal punishment 262corporationsrights of 136, 143–4

see also organisation rights

548 INDEX

transnational see transnationalcorporations

cosmopolitan democracy 26, 30, 31, 524Council of Europe

Fundamental Principles on the Statusof NGOs 23–5, 140, 166–8,170, 515

NGOs and 196–7: co-operation with416–25, 445, 519; definitions 40–3

counsel, NGOs as 302Court of First Instance (CFI) 264, 302, 346Cox, Robert 101Craven, Matthew 148Crawford, James 9criminal groups 45, 49, 52criminal law, international 187critical approach 80customary law 113

legal personality and 77–8recognition in 89

Dahl, Robert 14Danzig Railway Officials case 55–6, 112, 123,

124, 127–8Davidson, Scott 355death penalty 229–30, 276, 340–1decision-making, Aarhus Convention on

public participation in 160–4,515, 526

procedure for individualcommunications 285–8, 517

democracycivil society and 15–17communicative 35cosmopolitan 26, 30, 31, 524fairness and 24globalisation and 14–15, 31, 524international law and 6–12, 23, 29nature of 10, 11self-determination and 26

Desmond McKenzie v. Jamaica case 351, 353digital divide 17diplomatic protection 107, 124, 131direct applicability

ILO Conventions 159–60treaties 129

disappeared people 340disarmament, Conference on

Disarmament 448, 485, 520disaster relief, code of conduct for 200–1discourse theory 27, 28–36, 524discrimination, racial see racial

discriminationdrugs issues 373Dunant, Henry 69duties/obligations 187–201, 300

under Aarhus Convention 162, 163

under ECHR 135, 170–1under European Convention on the

Recognition of the Legal Personalityof International Non-GovernmentalOrganisations 166

under European Social Charter 177, 178under ICCPR 144–6under ICESCR 150–2under ILO Conventions 154, 157–8, 160,

192NGOs 190, 192–3, 217, 516: co-operation

with IGOs 193–8rights and 121, 122–3, 125social responsibilities 188, 189, 516UN Declaration on Human Rights

Defenders 192–3

Earth Summit 373Ecuador, Mining Development and

Environmental Control TechnicalAssistance Project 244–5

elections, process of 7, 8employment contracts 491enforcement of rights 124, 133environmental issues

Aarhus Convention on publicparticipation in decision-making160–4, 515, 526: procedure forindividual communications 285–8,517

Conference on Environment andDevelopment (Rio 1992) 447,450–5, 480, 483, 484, 485

Conference on the Human Environment(1972) 450

Convention on Environmental ImpactAssessment in a TransboundaryContext 288

Framework Convention on ClimateChange 451, 460, 485: Conference ofthe Parties to the FrameworkConvention on Climate Change(Kyoto) 447, 460–3, 484, 485

international law 29Erdemovic case 313Espoo Convention on Environmental

Impact Assessment in aTransboundary Context 288

European Communities – Measures AffectingAsbestos and Asbestos-Containing Productscase 323–6, 327

European Communities – Trade Description ofSardines 327

European Convention on Human Rights48, 168–77, 191, 216, 219, 515

assembly and association rights169–72

INDEX 549

European Convention on Human Rights(cont.)

fair hearing right 173–4freedom of religion 174–5legal nature of rights under 177non-party participation in Court of

Human Rights 328–45, 364, 365, 518peaceful enjoyment of possessions right

176–7respect for private life right 176standing (locus standi) 171, 177, 216,

246–57, 298, 302, 515: concept ofNGO and victim requirement247–53; NGOs as parties beforeCommission and Court 253–5;procedure 246–7

European Convention on the Recognitionof the Legal Personality ofInternational Non-GovernmentalOrganisations (1986) 40–1, 49, 164–6,515, 521–2

European Court of Justice (ECJ) 264–71, 302non-party participation 345–50, 364, 518standing before 264–71

European Framework Convention for theProtection of National Minorities 139

European Social Charter 177–80, 515collective complaint procedure 257–64,

517European Union (EU) 13, 14, 85

co-operation with NGOs 425–31, 445Court of First Instance (CFI) 264, 302, 346EU Commission 425: NGOs and 426–31;

non-party participation 328EU Council 426European Court of Justice 264–71, 302:

non-party participation 345–50, 364existence rights 134, 135–6expert witnesses, NGOs as 302, 309–10expression right see free expression right

fairness 24–5fair hearing right 142, 173–4

Falk, Richard 104FIELD 482financial markets 13Food and Agricultural Organization (FAO)

505–6, 507forced labour 263framework agreements 501–3Framework Convention on Climate

Change 451, 460, 485Conference of the Parties to the

Framework Convention on ClimateChange (Kyoto) 447, 460–3, 484,485

Franck, Thomas7–8, 11, 17, 23–5, 28, 29, 104

free expression right 7, 172–3, 182issues raised in cases before ECHR 257

Freedom and Democracy Party (OZDEP) v.Turkey case 247–8

freedom of religion 142, 174–5Fundacion de Ayuda Social de las Iglesias

Cristianas 230Furundzija case 312

Gabcikovo-Nagymaros Dam Project case 304gendertranssexuality 339–40see also women

Generale Sucriere v. Commission of the EU case347–8, 350

Geneva Convention for the Amelioration ofthe Condition of the Wounded inArmies in the Field (1864) 70

Geneva Conventions (1949) 70, 202–4, 205,495, 516

humanitarian organisations and 205–15globalisation 12civil society and 16democracy and 14–15, 31, 524diffusion of state power and 12–15, 524inclusion and 32legal pluralism and 95protest campaigns against 18–19

government and the stateagreements with NGOs 494–6conferral of international legal status

and 112–13consent by 25–6as dominant actors of international law

111globalisation and diffusion of power of

12–15, 524government-organised NGOs 45individuals’ rights and 126–7legitimacy 6, 22–8, 524liberalism and 101obligations: under Aarhus Convention

162, 163; under ECHR 135, 170–1;under European Convention on theRecognition of the Legal Personalityof International Non-GovernmentalOrganisations 166; under EuropeanSocial Charter 177, 178; under ICCPR144–6; under ICESCR 150–2; underILO Conventions 154, 157–8, 160

realist/neo-realist view of 100, 102recognition of 6–7, 9, 11sovereignty 23undemocratic regimes 9, 12

Grande Oriente d’Italia di Palazzo Giustiniani v.Italy case 256

Green Salvation 287

550 INDEX

Greenpeace 19, 266–7, 302Greenwood, Christopher 491, 494Group of Associations for the Defence of the Rights

of Disabled and Handicapped Persons inItaly v. Italy case 225

group rights 134–6, 170–1Gundem v. Turkey case 328

Habermas, Jurgen 26, 27–8, 30–2, 34, 524Harris, David J. 85, 124, 125, 127, 131, 169health and safety at work, European Social

Charter and 177, 178Held, David 11, 26–7, 30, 31Henkin, Louis 123, 125Henry Kalenga v. Zambia case 284Higgins, Rosalyn 91, 93–4, 96–7, 111, 112Hober, Kaj 494Hohfeld, Wesley 121–2, 125, 130, 131, 300Holy Monasteries case 250–1Holy See 64human rights see rightsHuman Rights in China (HRIC) 383–4humanitarian aid 201–15, 217, 516

care of wounded 210civil conflict 203, 206, 213, 214code of conduct for 200–1humanitarian organisations and 205–15prisoners of war 211–12protection of civilians in conflicts 212,

213, 214Huri-Laws v. Nigeria case 185–6hybrid NGOs 46

Ignacio Ellacurıa SJ et al. v. El Salvador case351

indigenous peoples, UN and 389, 390,391–2

individualslegitimacy and 28NGOs as representatives of 228–30, 232rights under international law 124, 125,

126–7, 131–2: group rights and 134,135–6; organisation rights and137–8; participation inorganisations 139

as subjects of international law 55, 56,96–7

see also standing (locus standi)Indonesia Auto case 318inductive method 115–17informal bodies 43Institut de Droit International 43institutionalism 101insurgent groups 64intention of parties, rights and 127–8Inter-American Commission on Human

Rights 437–8

non-party participation in legal process350–4

standing before 274–7, 517Inter-American Court of Human Rights

277–9non-party participation 354–61, 364,

518: advisory opinions 358–61;contentious cases 355–8

intergovernmental organisationsagreements with NGOs 496–506,

507–9co-operation with NGOs 193–8, 366–7,

444–5, 518–19, 526: African Union438–44, 445, 519; Council of Europe416–25, 445, 519; European Union425–31, 445; formal 193–8; ILO410–16, 519; operational 198, 521;Organization of American States(OAS) 431–8, 445, 519; UnitedNations 367–410, 445, 519

customary law and 78employment contracts and 491powers 75resolutions 113–14as subjects of international law 58–63,

87Interights 229–30, 276international agreements 487–94, 506–9

between IGOs and NGOs 496–506,507–9

between states and NGOs 494–6framework agreements 501–3memoranda of understanding (MOUs)

497, 498–501project agreements 503–6 see also

individual agreementsInternational Association of Lawyers

Against Nuclear Arms 219International Campaign to Ban Landmines

(ICBL) 18International Centre for Not-for-Profit

Law 16International Commission of Jurists

442, 464International Conference on Population

and Development (ICPD) 373international conferences 446–8, 479–86,

519–20, 526Conference of the Parties to the

Framework Convention on ClimateChange (Kyoto) 447, 460–3,484, 485

Conference on Disarmament 448, 485,520

Conference on Environment andDevelopment (Rio 1992) 447, 450–5,480, 483, 484, 485

INDEX 551

international conferences (cont.)Conference on the Human Environment

(1972) 450Rome Conference for an International

Criminal Court (1998) 447, 463–79,482, 484: influence of NGOs onnegotiations 468, 470–9, 519; legalframework for NGO participation467–70; research interviewing 464,465–7

rules for NGO participation in 448–50,480

Women’s Conference 480World Conference on Human Rights

(1993) 447, 464, 480, 483, 484, 486International Convention on the

Elimination of all forms of RacialDiscrimination 190–2, 516

Committee on the Elimination of RacialDiscrimination 231–4, 395, 402–4

International Co-Operative Alliance 375International Court of Justice (ICJ) 115, 517

non-party participation in 303–10, 363,365, 518

nuclear weapons opinion 219–23, 306,307, 309, 363, 517

standing before 219–23International Covenant on Civil and

Political Rights (ICCPR) 8, 51, 128, 132,139, 140–7, 514, 520

association rights under 140–4, 147obligations of states under 144–6reporting system 146supervision mechanism 145–6, 224–30

International Covenant on Economic,Social and Cultural Rights (ICESCR)129, 137, 139, 147–52

Draft Optional Protocol 230–1implementation in national law 151–2obligations of states under 150–2supervisory mechanism 152trade union rights under 148–50

International Criminal Courtnon-party participation 310Rome Conference for an International

Criminal Court (1998) 447, 463–79,482, 484

influence of NGOs on negotiations468, 470–9, 519

legal framework for NGO participation467–70

research interviewing 464, 465–7standing before 224Statute 115

International Criminal Tribunal forRwanda (ICTR), non-partyparticipation 310, 314–17, 364

International Criminal Tribunal for theformer Yugoslavia (ICTY)

non-party participation 310–14standing before 224

International Federation of Trade Unions(IFTU) 309

International Human Rights Law Group278

International Labour Organisation (ILO) 33,307

Committee on Child Labour 413Committee on Freedom of Association

237–9, 414ConferenceCommittee onApplication of

Standards 413–14Conventions 154–60, 412–13, 514

consultation procedure 157: directapplicability 159–60; obligationsunder 154, 157–8, 160, 192; rightto organise under 155–7, 172;supervision of compliance 158–9,237

co-operation with NGOs 410–16consultative procedure 415–16, 521tripartite structure 410–16

freedom of association procedures237–9, 514

General Conference 410–14Governing Body 412transnational corporations and 199

international law 6–36democracy and 6–12, 23, 29discourse theory and 27, 28–36, 524environmental 29humanitarian law 201–15, 516legal process see international legal

processlegitimacy and 6, 22–30, 523–6organisation rights in 139–40recognition of governments and 6–7sources of law 113–15subjects see legal personality/subjects of

lawtheoretical issues in see theoretical issues

in international lawInternational Law Commission 60, 464,

465–7, 488, 489, 492, 493, 507International League for the Rights of Man

303, 305–6, 307, 309international legal process 91, 94, 300–3new international legal process 91, 94,

98–9, 111transnational legal process 91, 94, 98–9

International Monetary Fund (IMF) 18, 520International Organisation for

Standardisation 22International Peace Bureau 219

552 INDEX

International Pen, Constitutional Rights Projectand Interights v. Nigeria case 185

international relations theories 81, 82, 83,100–9, 110, 111

new actors entering legal system 107–9who are the actors of international law

103–7International Union for the Conservation

of Nature (IUCN) 47ISKCON et al. v. The United Kingdom case 174

J. R. T. and the W. G. Party v. Canada case 225Jamuna Bridge Project 243–4Jessup, Philip 57Jones, Peter 136–7Juan Carlos Abella v. Argentina case 353–4

Karadzic and Mladic case 313Karner v. Austria case 344Kenya Human Rights Commission v. Kenya case

186Keohane, Robert A. 33, 34Kilic v. Turkey case 328Koh, Harald Hongju 94, 95, 98Koskenniemi, Martti 79, 109Kurt v. Turkey case 340Kyoto Protocol 460

L. A. on behalf of U. R. v. Uruguay case 227LaGrand case 123Lamagna v. Australia case 143, 227landmines

Convention on the Prohibition of theUse, Stockpiling, Production andTransfer of Anti-Personnel Minesand on their Destruction (1997) 70

International Campaign to BanLandmines (ICBL) 18

Ottawa Land Mine Conference (1997)471

Lauterpacht, Hersch 56–7, 97, 130,131, 218

Lawyer’s Committee on Nuclear Policy 220League of Nations 54, 58, 63, 134Leary, Virginia 414legal advice, access to 337–8legal capacity 75

rule-oriented approaches 86, 88Legal Consequences for States of the Continued

Presence of South Africa in Namibia case306

legal personality/subjects of law 51, 52,54–7, 116, 514

classical concepts relating to 74–7customary international law 77–8individuals 55, 56, 96–7: new actors

entering legal system 107–9

intergovernmental organisations 58–63,87

international law–internationalrelations approach 103–7

process-oriented approach 91–6: newactors entering legal system96–9

rule-based approaches 84–7: new actorsentering legal system 87–91, 99


‘sui generis’ subjects 63–74, 520:International Committee of the RedCross (ICRC) 63, 68–74, 112; Order ofMalta 63, 64–8, 112, 520see also legal status of NGOs

legal pluralism 95legal process, international see

international legal processlegal status of NGOs 81, 116, 168, 513–21,

526under European Convention on the

Recognition of the Legal Personalityof International Non-GovernmentalOrganisations 165–6

standard-setting and 521–3states and conferral of international legal

status 112–13legitimacy

individual and 28international law and 6, 22–30, 523–6meaning of 23states 6, 22–8, 524

Leonel de Jesus Isaza Echeverry v. Colombia case354

lex mercatoria 22, 95liberalism 101, 103–4, 111liberation movements 203, 214Libyan Oil Arbitration case 490, 494Ligue Camerounaise des Droits de l’Homme v.

Cameroun case 282Linklater, Andrew 32Loaza Tamayo v. Peru case 356, 357local government 47locus standi see standingLubicon Lake Band v. Canada case 226, 227Ludwigshafener Walzmuhle Erling KG v. EEC

case 347

MacCormick, Neil 122McGinley and Egan v. The United Kingdom case

341Malanczuk, Peter 75, 123–4, 125, 127, 130,

131, 490Malone v. The United Kingdom case 330manufacturing sector, globalisation

and 13

INDEX 553

Marıa Eugenia Morales de Sierra v. Guatemalacase 276, 352

Marks, Susan 10, 27, 33Martınez, Miguel Alfonso 188Mary and Carrie Dann v. US case 350The Mayagna (Sumo) Awas Tingni Community v.

Nicaragua case 357Mbaye, Keba 442Medecins Sans Frontieres 18media, globalisation and 13membership of NGOs 20memoranda of understanding (MOUs) 497,

498–501methodological issues 79–82

inductive method 115–17MEVOPAL SA v. Argentina case 181–2Mikmaq case 226military coups 443mines see landminesminorities 49

indigenous peoples 389, 390, 391–2rights of 7, 12, 134, 136, 137, 139

Mireille Meskens v. European Parliament case349

Modinos v. Cyprus case 253, 341monitoring mechanisms 131–2morality, legitimacy and 25–6Morgenthau, Hans 102Mosler, Hermann 88–9, 90, 99, 300, 302multinational corporations see

transnational corporations (TNCs)Murphy, Sean D. 8Murray v. The United Kingdom case 337–8

National Union of Belgian Police case 179,255

National Union of Journalists and Others v. TheUnited Kingdom case 255

neo-realism 100New Haven school 91, 92, 108, 112new international legal process 91, 94,

98–9, 111NGO Coalition for the Establishment of an

International Criminal Court (CICC)468, 470–9

Nobel Peace Prize 18non-governmental organisations (NGOs) 3,

4–5, 33–6definitions 525: international

instruments and doctrine 36–46;this study 46–52

increasing role of 16, 17–22numbers 19see also individual topics and

organisationsnon-party (third party) participation 301,

302, 363–5, 517–18, 521

African Commission and Court ofHuman Rights 361–2, 518

European Commission 328European Court of Human Rights

328–45, 364, 365, 518European Court of Justice 345–50, 364,

518Inter-American Commission 350–4Inter-American Court of Human Rights

354–61, 364, 518: advisoryopinions 358–61; contentious cases355–8

International Court of Justice (ICJ)303–10, 363, 365, 518

International Criminal Court (ICC) 310International Criminal Tribunal for

Rwanda (ICTR) 310, 314–17, 364International Criminal Tribunal for the

former Yugoslavia (ICTY) 310–14World Trade Organization (WTO) dispute

settlement procedure 317–27,363–364, 365

non-profit organisations 38, 39, 41, 42,47–8

North American Agreement onEnvironmental Cooperation (NAAEC),citizen submission procedure 288–98,517

North American Free Trade Agreement(NAFTA) 288, 289

Norway, aid programmes 21Nowak, Manfred 140, 142, 144nuclear weaponsICJ opinion on 219–23, 306, 307, 309,

363, 517testing 341

Nuremberg International Military Tribunal187

O’Connell, Mary Ellen 98, 112Odinkalu, Chidi Anselm 362Open Door and Dublin Well Woman v. Ireland

case 251, 257Oppenheim, Lassa 54–5, 74, 131Order of Malta 60, 205as ‘sui generis’ subject of international law

63, 64–8, 112, 520United Nations and 371

Order of Santa Maria Gloriosa 76Organization for African Unity (OAU) 305,

370, 438see also African Union

Organization for Economic Co-operationand Development (OECD), Guidelinesfor Multinational Enterprises 198

Organization of American States (OAS)Councils 436–7

554 INDEX

General Assembly 432, 435–6General Secretariat 435–6Inter-American Commission on Human

Rights 437–8NGOs and 43, 197–8, 431–8, 445, 519

organisation rights 134–87, 216–17, 514,520

individual rights and 137–8instability threat from 137, 138in international law 139–40limitations 190–2

organisations, right to participate in 139Oscar Romero v. El Salvador case 354Ottawa Land Mine Conference (1997) 471

Paez v. Sweden case 328Palestine Liberation Organisation (PLO)

370Parti ecologiste ‘Les Verts’ v. European

Parliament case 269participation 524

Aarhus Convention on publicparticipation in decision-making160–4, 515, 526: procedure forindividual communications 285–8,517

non-parties in legal system see non-party(third party) participation

process-orientation and 95right to participate in organisations 139

Paulus, Andreas 84, 112Permanent Court of International Justice

(PCIJ) 307Physicians for the Prevention of Nuclear

War 219, 306Plattform ‘Arzte fur das Leben’ v. Austria case

169, 256Plaumann & Co v. Commission case 265pluralism 95policy orientation 91–3, 97–8, 111political parties 18, 41, 42, 45, 48–9population issues, International

Conference on Population andDevelopment (ICPD) 373

positivism 83, 108power 104–6prisoners of war 211–12private contacts, transnational 19private life, right to respect for 176process-oriented theories 80, 82, 83, 91–9,

111, 113new actors entering legal system 96–9who are the actors of international law

91–6professional associations 170profit-making organisations 42project agreements 503–6

propertyprotection in conflicts 213right to peaceful enjoyment of

possessions 176–7Prosecutor v. Samuel Imanishimwe et al. case

316–17protest campaigns 18–19, 29Purcell and Others v. Ireland case 252Putnam, Robert 16

Quaker Council for European Affairs(QCEA) 263

racial discrimination 190–2Committee on the Elimination of

Racial Discrimination 231–4, 395,402–4

International Convention on theElimination of all forms ofRacial Discrimination 190–2,516

racist groups 138Rafael Ferrer-Mazorra et al v. US case 351Raz, Joseph 122, 134, 136realism 100, 102recognition

customary law 89government/state 6–7, 9, 11international legal personality and

76–7Red Cross and Red Crescent Movement 20,

21, 205, 516code of conduct 200–1Geneva Conventions (1949) and 206, 207,

208, 209, 213international agreements 487, 494–6,

507, 509International Committee (ICRC) as ‘sui

generis’ subject of international law63, 68–74, 112

United Nations and 370–1regime theory 101regulation 22, 45religion, freedom of 142, 174–5religious congregations 42remedies, rights and 130–3Reparation for Injuries Suffered in the Service of

the United Nations case 58–60, 87, 90,112

representatives, NGOs as 228–30, 232,302–3

rights 117, 121–3, 215, 520enforcement 124, 133group rights 134–6, 170–1intention of parties 127–8monitoring mechanisms 131–2non-state rights 123–33

INDEX 555

rights (cont.)organisation rights 134–87, 216–17, 514,

520: individual rights and 137,137–8; instability threat from 137,138; in international law 139–40

remedies and 130–3terms of treaties and 128–30theoretical issues 121–34transnational corporations and 199–200see also individual rights

Rio Conference on Environment andDevelopment (1992) 447, 450–5, 480,483, 484, 485

Rodley, Nigel 394, 395Rome Conference for an International

Criminal Court (1998) 447, 463–79,482, 484

influence of NGOs on negotiations 468,470–9, 519: examples of influence478–9; internal strategy of NGOCoalition 477; modalities for NGOparticipation 471–2; role of differentorganisations 478; strategies andworking methods of NGOs 472–7

legal framework for NGO participation467–70

research interviewing 464, 465–7rule-oriented theories 80, 81, 82, 83, 84–91,

111, 112, 113, 115new actors entering legal system 87–91,

99who are the actors of international law

84–7Rwanda, International Criminal Tribunal

310, 314–17, 364

Schermers, Henry G. 61, 85, 366sea, law of 491self-determination right 7, 26, 134, 136, 147Seyersted, Finn 61Shaw, Malcolm N. 76Sheffield and Horsham v. UK case 339–40Shelton, Dinah 363silence, right to 337Silverman, David 466Simma, Bruno 84, 112Slaughter, Anne-Marie 10, 103–4, 109slavery 443social responsibilities, draft declaration on

188, 189, 516social security systems, globalisation and 13Socialist Party and Others v. Turkey case 255Soering v. The United Kingdom case 330, 340–1sources of law 113–15South West Africa case 84South West Africa People’s Organization

(SWAPO) 370

sovereignty 23standardisation 22, 95standard-setting, legal status of NGOs and

521–3standing (locus standi) 218–19, 298–9, 517, 5211503 Procedure 236–7, 521Aarhus Convention procedure for

individual communications 285–8,517

African Charter on Human and Peoples’Rights 186–7, 279–85: AfricanCommission 279–85, 517, 521;African Court 285, 517

American Convention on Human Rights181–2, 271–9: Inter-AmericanCommission 274–7, 517;Inter-American Court 277–9;procedure 271–4

Committee Against Torture 234–5Committee on Elimination of

Discrimination Against Women235–6

Committee on the Elimination of RacialDiscrimination 231–4

European Convention on Human Rights171, 177, 216, 246–57, 298, 302, 515:concept of NGO and victimrequirement 247–53; procedure246–7

European Court of Justice 264–71, 302European Social Charter collective

complaint procedure 257–64, 517International Court of Justice (ICJ) 219–23International Criminal Court (ICC) 224International Criminal Tribunal for the

former Yugoslavia (ICTY) 224International Labour Organization (ILO),

freedom of association procedures237–9

North American Agreement onEnvironmental Cooperation(NAAEC) 288–98, 517

UN Human Rights Committee 224–31UNESCO procedure for individual

communications 239–41, 521World Bank Inspection Panel 241–6

see also non-party (third party)participation

Stankov and United Macedonian OrganisationIlinden v. Bulgaria case 248–9, 256–7

state see government and the stateStichting Greenpeace Council (Greenpeace

International) and others v. Commissioncase 266–7, 302

strike, right to 148, 149, 179subjects of law see legal personality/

subjects of law

556 INDEX

‘sui generis’ subjects of international law63–74, 520

International Committee of the RedCross (ICRC) 63, 68–74, 112

Order of Malta 63, 64–8, 112, 520supervision mechanisms

Aarhus Convention 163European Social Charter 178, 180ICCPR 145–6, 224–30ICESCR 152ILO Conventions 158–9, 237

Sutherland v. UK case 328Svenska Journalistforbundet v. Council of the EU

case 268–9Sweden, aid programmes 21Swedish Engine Drivers’ Union v. Sweden case

255Switzerland

aid programmes 21Red Cross and 495

Syndicat National des Professions du Tourisme v.France case 261

Tadic case 311terrorist groups 49, 52, 138, 204, 332–4, 522Teubner, Gunther 95, 96Theoneste Bagosora case 316theoretical issues in international law

79–82, 109–11actors of international law and 82–117:

increasing role of non-state actors111–12; new actors entering legalsystem 87–91, 96–9, 107–9; statesas dominant actors of internationallaw 111; who are the actors ofinternational law 84–7, 91–6, 103–7

critical approach 80inductive method 115–17international law–international

relations approach 81, 82, 83, 100–9,110, 111: new actors entering legalsystem 107–9; who are the actors ofinternational law 103–7

process-oriented approach 80, 82,83, 91–9, 111, 113: new actorsentering legal system 96–9; whoare the actors of international law91–6

rights 121–34rule-oriented approach 80, 81, 82, 83,

84–91, 111, 112, 113, 115: new actorsentering legal system87–91, 99;whoare the actors of international law84–7

sources of law 113–15states and conferral of international legal

status 112–13


third parties see non-party (third party)participation

torture 338–9Convention Against Torture 234–5United Nations Committee Against

Torture 234–5, 395, 399–401World Organisation against Torture 262

trade unions 41, 42, 307African Charter on Human and Peoples’

Rights and 184civil service 141closed shop 341ECHR and 134, 170, 171–2European Social Charter and 179–80ICESCR and 137, 148–50ILO Conventions and 155–7, 172as non-party participants in court 347,

349rights to join 140, 216

transnational corporations (TNCs) 106human rights issues and 199–200ILO and 199international obligations 189OECD Guidelines for 198United Nations and 199–200

transnational legal process 91, 94, 98–9transnational private contacts 19Transnational Radical Party (TRP) 385transnationalism 102transsexuality 339–40treaties 7, 52, 113

directly applicable 129monitoring mechanisms 131–2non-state rights-holders on the

international plane and 128–30self-executing 129Vienna Conventions 487–8, 488–9, 493,

506, 509tripartism 410–16Tyrer v. The United Kingdom case 329

undemocratic regimes 9, 12, 138Union of Arab Banks 50United Communist Party of Turkey and Others v.

Turkey case 255United Nations 117

1503 Procedure 236–7, 521Charter 37, 38, 39, 47, 59civil society and 406–10codes of practice and 199–200Commission on Sustainable

Development (CSD) 392–3, 451,455, 485

Committee Against Torture 234–5, 395,399–401

INDEX 557

United Nations (cont.)Committee on Conventions and

Recommendations 240–1Committee on Economic, Social and

Cultural Rights 395, 397–9Committee on the Elimination of

Discrimination Against Women235–6, 395, 401–2

Committee on the Elimination of RacialDiscrimination 231–4, 395, 402–4

Committee on the Protection of theRights of All Migrant Workers andMember of their Families 395, 406

Committee on the Rights of the Child395, 404–6

Declaration on Human Rights Defenders140, 152–4, 192–3, 515

draft declaration on socialresponsibilities 188, 189, 516

Economic and Social Council (ECOSOC)371, 519, 523: consultativearrangements 374–86; standingcommittee on NGOs 382–6;subsidiary bodies and extra-conventional mechanisms 387–94

Food and Agricultural Organization(FAO) 505–6, 507

General Assembly 220, 221: co-operationwith NGOs 369–73

High Commissioner for Human Rights459

High Commissioner for Refugees 498,499–502, 504–5

Human Rights Commission 9, 387–9,473, 516

Human Rights Committee 395, 396–7:standing before 224–31, 224–30

International Committee of the RedCross and 74

international conferences 446–8,479–86: Conference of the Parties tothe Framework Convention onClimate Change (Kyoto) 447, 460–3,484, 485; Conference onDisarmament 448, 485, 520;Conference on Environment andDevelopment (Rio 1992) 447, 450–5,480, 483, 484, 485; Conference onthe Human Environment (1972)450; Rome Conference for anInternational Criminal Court(1998) 447, 463–79, 482, 484, 519;rules for NGO participation in448–50, 480; Women’s Conference480; World Conference on HumanRights (1993) 447, 464, 480, 483,484, 486

legal personality 58–60, 87NGOs and 19, 194–6, 523: co-operation

with 367–410, 445, 519; CouncilCommittee of NGOs 195–6;definitions 37–40; reform proposals406–10

Order of Malta and 67–8Permanent Forum on Indigenous Issues

390reform proposals 33, 406–10Security Council 13: co-operation with

NGOs 373–4, 408Sub-Commission on the Promotion and

Protection of Human Rights 390–1UNESCO procedure for individual

communications 239–41, 521Working Groups: on Arbitrary Detention

394; on draft declaration on therights of indigenous peoples 389,392; on Enforced or InvoluntaryDisappearances 393; on IndigenousPopulations 391–2; on permanentforum for indigenous peoples in theUN system 390

World Health Organization (WHO) 115,220, 502–3, 505

United States – Import Prohibition of CertainShrimp and Shrimp Products case318–22

United States – Imposition of CountervailingDuties on Certain Hot-Rolled Lead andBismuth Carbon Steel Products Originatingin the UK case 322–3

Universal Declaration of Human Rights139, 239, 516

Van Dijk, P. 170Van Hecke, Georges 491, 508Van Hoof, Godefridus 78, 170Van Rooy, Alison 34Vatican 64Verein ‘Kontakt-Information-Therapie’ and Jagen

v. Austria case 175Vienna Convention on the Law of Treaties

(1969) 487–8, 506, 509Vienna Convention on the Law of Treaties

between States and InternationalOrganizations or betweenInternational Organizations (1986)488–9, 493, 506, 509

Vienna Declaration and Programme ofAction 458–9

Waltz, Kenneth 100war see conflict/warWeil, Prosper 84Weissbrodt, David 391

558 INDEX

welfare systems, globalisation and 13Westphalia, Peace Treaty of 54Wiessner, Siegfried 96, 97Willard, Andrew R. 96, 97Williams, Jody 18Winterwerp v. Netherlands case 329women

Convention on the Elimination of AllForms of Discrimination againstWomen 139

rights of 139United Nations Committee on the

Elimination of DiscriminationAgainst Women 235–6, 395, 401–2

Women’s Conference 480World Bank 16, 18, 50, 498

Draft Handbook on Good PracticesRelating to Non-GovernmentalOrganizations 45

Inspection Panel 241–6World Conference Against Racism 384World Conference on Human Rights (1993)

447, 464, 480, 483, 484, 486World Court see International Court of

Justice

World Court Project 219–21, 517World Federation of Trade Unions 375World Food Programme (WFP) 21, 497,

499–502, 503–4World Health Organization (WHO) 115,

220, 502–3, 505World Organisation against Torture 262World Trade Organization (WTO) 18

dispute settlement procedure 317–27,363–364, 365

World Wide Fund for Nature (WWF) 20wounded, care of 210

X. and Church of Scientology v. Sweden case174, 253

X. on behalf of S. G. F. v. Uruguay case228

X. Union v. France case 252

Young, Iris Marion 35Young, James and Webster v. The United

Kingdom case 329, 341Yugoslav war trials see International

Criminal Tribunal for the formerYugoslavia

INDEX 559

CAMBRIDGE STUDIES IN INTERNATIONAL AND COMPARATIVE LAW

Books in the series

Non-Governmental Organisations in International Law

Anna-Karin Lindblom

Democracy, Minorities and International Law

Steven Wheatley

Prosecuting International Crimes

Selectivity and the International Criminal Law RegimeRobert Cryer

Compensation for Personal Injury in English, German and Italian LawA Comparative Outline

Basil Markesinis, Michael Coester, Guido Alpa,

Augustus Ullstein

Dispute Settlement in the UN Convention on the Law of the Sea

Natalie Klein

The International Protection of Internally Displaced Persons

Catherine Phuong

Imperialism, Sovereignty and the Making of International Law

Antony Anghie

Necessity, Proportionality and the Use of Force by States

Judith Gardam

International Legal Argument in the Permanent Court of International Justice

The Rise of the International JudiciaryOle Spiermann

Great Powers and Outlaw StatesUnequal Sovereigns in the International Legal OrderGerry Simpson

Local Remedies in International LawC. F. Amerasinghe

Reading Humanitarian Intervention

Human Rights and the Use of Force in the International LawAnne Orford

Conflict of Norms in Public International Law

How WTO Law Relates to Other Rules of LawJoost Pauwelyn

Transboundary Damage in International LawHanqin Xue

European Criminal Procedures

Edited by Mireille Delmas-Marty and John Spencer

The Accountability of Armed Opposition Groups in International LawLiesbeth Zegveld

Sharing Transboundary ResourcesInternational Law and Optimal Resource Use

Eyal Benvenisti

International Human Rights and Humanitarian LawRene Provost

Remedies Against International Organisations Basic Issues

Karel Wellens

Diversity and Self-Determination in International Law

Karen Knop

The Law of Internal Armed ConflictLindsay Moir

International Commercial Arbitration and African States

Practice, Participation and Institutional DevelopmentAmazu A. Asouzu

The Enforceability of Promises in European Contract LawJames Gordley

International Law in Antiquity

David J. Bederman

Money-LaunderingA New International Law Enforcement Model

Guy Stessens

Good Faith in European Contract Law

Reinhard Zimmermann and Simon Whittaker

On Civil ProcedureJ. A. Jolowicz

Trusts

A Comparative StudyMaurizio Lupoi

The Right to Property in Commonwealth ConstitutionsTom Allen

International Organizations Before National Courts

August Reinisch

The Changing International Law of High Seas FisheriesFrancisco Orrego Vicuna

Trade and the EnvironmentA Comparative Study of EC and US Law

Damien Geradin

Unjust EnrichmentA Study of Private Law and Public Values

Hanoch Dagon

Religious Liberty and International Law in EuropeMalcolm D. Evans

Ethics and Authority in International LawAlfred P. Rubin

Sovereignty Over Natural Resources

Balancing Rights and DutiesNico Schrijver

The Polar Regions and the Development of International Law

Donald R. Rothwell

Fragmentation and the International Relations of Micro-States

Self-determination and StatehoodJorri Duursma

Principles of the Institutional Law of International Organizations

C. F. Amerasinghe